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2005-UP-481 - Stanley v. City of Columiba Animal Control
Stanley v

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wanda Stanley,        Appellant,

v.

City of Columbia Animal Control Department, a/k/a City of Columbia,        Respondent.


Appeal From Richland County
Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No. 2005-UP-481
Submitted June 1, 2005 – Filed August 8, 2005


REVERSED AND REMANDED


M. Baron Stanton, of Columbia, for Appellant.

Dana M. Thye, of Columbia, for Respondent.

PER CURIAM:  This appeal arises after the trial court directed a verdict for the City of Columbia in an action brought by Wanda Stanley involving allegations that the City unlawfully detained and euthanized five of her Shar-Pei puppies.  We reverse and remand for trial.[1]

FACTS

This case has had a tangled procedural history that includes a prior appeal resulting in a decision by this court and review by the supreme court, which affirmed in part and reversed in part our decision.  We adopt the factual summary of the supreme court in Stanley v. Kirkpatrick, 357 S.C. 169, 172-173, 592 S.E.2d 296, 297-98 (2004), as included below.

Respondent bred Shar-Pei dogs at her Columbia home.  Due to the complaints of neighbors, the City fined Respondent several times for operating an unlawful kennel and for keeping unlicensed pets.  Officer Kevin Kirkpatrick issued at least three of these citations.

Kirkpatrick testified he received a complaint in July 1996.  As a result, he, along with Officer H.P. Stephenson of the Humane Society, visited Respondent’s home and saw fifteen Shar-Pei dogs inside the house and in the backyard, which was enclosed with a metal gate.  On July 8, 1996, Stephenson and Kirkpatrick returned to the residence in an effort to acquire details for a search warrant.  On this visit, they saw five female Shar-Pei puppies running around the street and in the neighbor’s yard.  They captured the at-large puppies.

The following day, Kirkpatrick served a warrant on Respondent, citing her for violating a city ordinance restricting the number of dogs per residence.  He informed Respondent he had captured five puppies that were taken to the Animal Services Shelter (the shelter) and that she needed to contact the shelter to identify the puppies.  While Kirkpatrick assumed the dogs were Respondent’s, he testified that because the dogs were picked up at-large, there was still a question whether they were truly hers.

In her deposition, Respondent disputed the events as related by Kirkpatrick and Stephenson.  She testified she believed Kirkpatrick opened the gate, entered her backyard, and removed her dogs.[2]  However, she stated she did not see him open the gate, nor did anyone tell her they saw him open the gate.  She stated a dog had never escaped from her backyard, and there was mesh screening around the gate to prevent such an occurrence.

Respondent contacted the shelter and was informed she would have to pay $129 per dog to redeem them.[3]  Two employees at the shelter testified they directly informed respondent she had to identify the dogs because the shelter holds unidentifiable animals for only five days.[4]   Respondent claimed no one told her she had only five days to retrieve the dogs.

Because no one came to the shelter to identify the dogs, they were euthanized.  They were found to be unsuitable for adoption because they had a skin problem and were aggressive towards each other and the handlers.

Respondent filed a § 1983 claim against the City.[5]  She later filed a motion to amend the complaint to add state tort claims to her § 1983 lawsuit.  The City filed a motion for summary judgment.  The trial court denied the motion to amend and granted the City’s motion for summary judgment.

The Court of Appeals reversed the trial court’s denial of Respondent’s motion to amend her complaint to add state tort claims and reversed the trial court’s order granting summary judgment on the § 1983 claim.  The supreme court affirmed by also finding the trial court had in fact erred by denying Respondents’ motion to amend the complaint.  Id.  at 178, 592 S.E.2d at 300.  However, the supreme court reversed on the granting of the summary judgment on the § 1983 claim.  Id.  The court determined Respondent was unable to show any official policy or custom existed that caused her to suffer a denial of a constitutional right.  Id. at 175-178, 592 S.E.2d at 299-300.

As a result of the supreme court decision, the case was remanded and Stanley was allowed to amend the complaint to add causes of action for trespass to land, trespass to chattels, and conversion.  The case proceeded to trial. 

After Stanley’s case-in-chief, the court granted a directed verdict for the City on the grounds:

the evidence in the light most favorable to the plaintiff is that she did not believe Mr. Kirkpatrick’s statement that the dogs were wriggling out from under the fence because her – she considered her yard secure and they had never escaped before; therefore, he must have let them out.  I find that is – and he ultimately ended up with possession, so therefore, he had to let them out.  I find that’s speculative and conjectural.  That is not sufficient circumstantial evidence or direct evidence to establish that he opened the gate or that he did anything which – to allow the dogs to come out of the fenced area; therefore, as to the trespass I’m directing a verdict. 

Regarding the claim of conversion, the court also granted a directed verdict because Stanley did nothing more than call and inquire after the puppies.  The court says a claim of ownership is required and suggests that Stanley’s actions do not fulfill the requirement.  Stanley appeals.

STANDARD OF REVIEW

When the trial court rules on a motion for directed verdict, it is required to view the evidence and the inferences which reasonably can be drawn in the light most favorable to the party opposing the motion and to deny the motion where either the evidence yields more than one inference or its inference is in doubt.  Harvey v. Strickland, 350 S.C. 303, 308, 566 S.E.2d 529, 532 (2002).  “When considering directed verdict motions, neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence.”  Id.  “In essence, we must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his favor.”  Bultman v. Barber, 277 S.C. 5, 7, 281 S.E.2d 791, 792 (1981).  “If the evidence is susceptible to more than one reasonable inference, the case should be submitted to the jury.”  Quesinberry v. Rouppasong, 331 S.C. 589, 594, 503 S.E.2d 717, 720 (1998).

LAW AND DISCUSSION

I.    Trespass

Stanley argues the trial court erred in granting a directed verdict on the trespass cause of action.  We agree.

In delivering its ruling, the trial judge stated:

the evidence in the light most favorable to the plaintiff is that she did not believe Mr. Kirkpatrick’s statement that the dogs were wriggling out from under the fence because her – she considered her yard secure and they had never escaped before; therefore, he must have let them out. . . .  I find that’s speculative and conjectural.  That is not sufficient circumstantial evidence or direct evidence to establish that he opened the gate or that he did anything . . . to allow the dogs to come out of the fenced area. 

(emphasis added).

However, if there is even a mere “scintilla of evidence” tending to prove the allegations of the complaints, the motion must be denied.  Jamison v. The Pantry, Inc., 301 S.C. 443, 444, 392 S.E.2d 474, 475 (Ct. App. 1990).  “Because a direction of a verdict is not favored, a case must be clear, certain, or indisputable to warrant a trial judge’s granting of a motion seeking a directed verdict.”  Id.  This is the same standard this court employs when reviewing a grant of summary judgment. 

We previously ruled that summary judgment was inappropriate because “Stanley provided evidence by deposition testimony and sworn affidavits that the puppies were in the fenced back yard, that they were of a size unable to go under the fence, and that the fence was reinforced with mesh.”  Stanley v. Kirkpatrick, Op. No. 2001-UP-016 (S.C.Ct.App. refiled Oct. 3, 2001).  Without ruling on how this prior decision impacts the law of the case, we note its findings are still true. 

Stanley testified at trial that the puppies were in the fenced backyard, that they were of a size unable to go under the fence, and that the fence was reinforced with mesh.  Additionally, Stanley testified it was unlikely a Shar-Pei would dig under the fence, and it was unlikely the puppies would have left their mother, who was in the backyard.  Finally, Stanley presented evidence that although she received other animal control violation tickets from Officer Kirkpatrick, she had not been ticketed for allowing dogs to run at-large. 

This evidence establishes Stanley’s belief was not based on mere conjecture or speculation but ascertainable circumstantial evidence.  Importantly, “Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact.  The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence.”  Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 337, 534 S.E.2d 672, 680 (2000).  Because there is circumstantial evidence tending to prove the allegations of the complaint, the trial court erred in granting a directed verdict as to the trespass cause of action.

II.   Conversion

Stanley also argues the trial court erred in directing a verdict on the conversion cause of action.  We agree.

“Conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner’s rights.”  Crane v. Citicorp Nat’l Servs., Inc., 313 S.C. 70, 73, 437 S.E.2d 50, 52 (1993) (citations omitted).  “To establish the tort of conversion, it is essential that the plaintiff establish either title to or right to the possession of the personal property.”  Id.  “Conversion is a wrongful act which emanates by either a wrongful taking or wrongful detention.”  Regions Bank v. Schmauch, 354 S.C. 648, 667, 582 S.E.2d 432, 442 (Ct. App. 2003).  “Since conversion is a wrongful act, it cannot arise from the exercise of a legal right.”  Castell v. Stephenson Finance Co., 244 S.C. 45, 51, 135 S.E.2d 311, 313 (1964) (citation omitted).

We have already stated there was sufficient evidence to present the trespass cause of action to the jury because of evidence that Kirkpatrick opened the gate and removed the dogs.  This same evidence makes it improper to direct a verdict on the conversion cause of action because it is circumstantial evidence from which the jury might find Kirkpatrick wrongfully took or detained the puppies.

CONCLUSION

For the reasons discussed above, the order of the trial court is

REVERSED AND REMANDED.

GOOLSBY, HUFF, and KITTREDGE, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Respondent further testified that, at a prior court hearing on her citations, Kirkpatrick told her, “I’ll find your dogs.”  Kirkpatrick denied the conversation.

[3] This fee included a $76 fine for the puppy being at-large, a $20 impound fee, $28 for spaying, and $5 for a future rabies vaccination.

[4] Section 9-5027(a) of the Columbia City Code states, “[I]mpounded animals not redeemed within five (5) days may thereafter be humanely destroyed by the animal control division.”

[5] 42 U.S.C. § 1983 provides, in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”