Fagan v. Hazzard

225 S.E.2d 640 (1976) 29 N.C. App. 618

Betty Crotts FAGAN
v.
Arthur S. HAZZARD.

No. 7618SC65.

Court of Appeals of North Carolina.

June 16, 1976.

Schoch, Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for plaintiff appellee.

Stephen E. Lawing, High Point, for defendant appellant.

HEDRICK, Judge.

By exceptions one, two, and three, defendant contends the court erred "in refusing as a matter of law to set aside entry of default and allow filing of answer on the grounds that no excusable neglect has been shown."

First, we point out that there was no "entry of default" nor was there a default judgment under G.S. 1A-1, Rule 55(b). The record discloses that the defendant filed his answer and counterclaim more than thirty days after summons and complaint had been properly served as provided by G.S. 1A-1, Rule 4, without having obtained leave to do so. G.S. 1A-1, Rule 6(b) in pertinent part provides:

"When by these rules ... an act is required or allowed to be done at or within a specified time * * * [u]pon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect. * * *

While the defendant undertook to show excusable neglect in his failure to timely file the answer, the court's finding and conclusion that there had not been a showing of excusable neglect is supported by the record.

Citing G.S. 1A-1, Rule 55(b), defendant contends that Judge Albright "erred in rendering judgment by default against the defendant when no written notice of application for judgment was served upon the defendant at any time prior to the hearing on such application". We do not agree. Rule 55 has no application here since as pointed out before, no entry of default or judgment by default was ever sought or entered on this case. See Whitaker v. Whitaker, 16 N.C.App. 432, 192 S.E.2d 80 (1972).

Defendant contends the court erred in not granting him a trial by jury. This contention appears to be based on an exception to the judgment. Such an exception raises the question of whether the facts found or admitted support the conclusions of law and whether the judgment is in proper form. On 15 August 1975, the defendant made a demand for a trial by jury, but the record does not indicate that the court ever ruled on the demand. Since the court obviously undertook to determine the issue of damages without a jury, we consider the defendant's contention, even though it is not, in our opinion, properly raised. G.S. 1A-1, Rule 8(d) provides:

"Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided."

Since the defendant did not timely file an answer, the averments of the complaint with respect to the defendant's conversion of the piano parts were admitted; and the plaintiff was entitled to judgment for the conversion of the property provided she was able to show that the property converted had some value. The issue of damages, actual and exemplary, remained to be tried. By failing to timely file an answer, and timely make a demand for a jury trial on the issue of damages, the defendant waived his right to have the jury determine the issue of damages. G.S. 1A-1, Rule 38(d).

Defendant contends the evidence and findings of fact do not support the conclusion that plaintiff is entitled to recover actual damages in the amount of $950.00 and exemplary damages in the amount of $1,900.00. The measure of damages for a wrongful conversion is the fair market value of the chattel at the time and place of conversion. Crouch v. Trucking Company, 262 N.C. 85, 136 S.E.2d 246 (1964); Seymour v. Sales Co., 257 N.C. 603, 127 S.E.2d 265 (1962); Peed v. Burleson's Inc., 244 N.C. 437, 94 S.E.2d 351 (1956). The court made no findings regarding the fair market value of the player portion of the piano converted by the defendant. The finding by the court that plaintiff had suffered actual damages in the amount of $950.00 is really a conclusion and is not supported by appropriate findings of fact.

The description of the property converted is meager. Plaintiff gave her opinion as to the fair market value of the piano before and after the player portion was removed by the defendant for the purpose of being repaired. Plaintiff's description of the part converted by the defendant was merely that it did not function and that some of the tubing looked brand new. However, the man from whom plaintiff purchased the piano for $150.00 testified that the player portion had never worked during the seven years he owned it and that he had replaced some of the tubing himself with material he had purchased at an automotive parts store. The two experts, Mr. Munn who testified for plaintiff and Mr. Starling who testified for defendant, were in disagreement as to whether the player portion of a Gulbransen piano could be repaired. Mr. Munn testified in general about Gulbransen player pianos but he had not even seen plaintiff's piano or any part thereof. Mr. Starling testified that the player portion of Gulbransen pianos could not be repaired, and he testified that the defendant brought parts of plaintiff's piano to him for consultation. Mr. Starling provided the court with the only direct evidence as to the value of the player portion of the piano allegedly converted by defendant. With respect thereto he testified "the value of the player part of a Gulbransen piano is not one nickel".

The conflict in the evidence with respect to the value of the player portion of the piano should have been resolved by appropriate findings of fact. Because the court failed to make findings of fact as to the value of the property converted by the defendant, the judgment awarding actual damages in the amount of $950.00 must be vacated. Likewise the judgment awarding exemplary damages in the amount of $1,900.00 must be vacated since "``[p]unitive damages may not be awarded unless otherwise a cause of action exists and at least nominal damages are recoverable by the plaintiff.' Worthy v. Knight, 210 N.C. 498, 187 S.E. 771." Clemmons v. Insurance Co., 274 N.C. 416, 424-25, 163 S.E.2d 761, 766 (1968).

The result is: The order dated 24 September 1975 striking defendant's answer and counterclaim and denying defendant's motion to be allowed to file an answer and counterclaim is affirmed; that portion of the judgment entered 28 October 1975 declaring that the only issue for trial is that of actual and exemplary damages is affirmed. G.S. 1A-1, Rule 8(d). That portion of the judgment entered 28 October declaring that plaintiff is entitled to recover $950.00 actual damages and $1,900.00 exemplary damages is vacated and the cause is remanded to the superior court for a new trial on the issue of actual and punitive damages.

Affirmed in part; Vacated and Remanded in part.

BROCK, C.J., and CLARK, J., concur.