CAV Reverses Conversion Claim Based on Abandoned Vehicle Act; Decides Marijuana Possession Appeal
The Court of Appeals issued two published decisions today. In CB & PB Enterprises, LLC, et al v. Bryant McCants, the Court address as an issue of first impression the application of the Virginia Abandoned Vehicle Act, Code §§ 46.2-1200 to -1207, in an action for conversion of personal property. This opinion is a must read for any one who represents garages and other businesses that act as bailees of automobiles. McCants, who is apparently a private car dealer or at least buys and sells cars freequently, owned a 1970 Mustang -- the opinion does not provide any details on the model or condition, but the jury awarded $78,500, which would be a reasonable price if the vehicle was a Mustang Mach 1 with low mileage in cherry condition with a 428ci Cobra Jet Ram Air V8 engine -- as only 364 of these were produced in 1970, I some how doubt that it was a Mach 1 428 Cobra Jet Ram Air V8 (the one below is listed at $72,000 but has a few quality issues).
However, I am more than a bit curious as to the vehicle's spec and condition given the evidence, which in summary is that McCants left the vehicle with CB & PB Enterprises, a Maaco franchise, for some repair and repainting in January of 2017. McCants was not satisfied with the paint job and Maaco agreed to repaint the vehicle When it was ready, Maaco contacted McCants to come retrieve the car, but he made excuses not to do so even though he had paid the cost of the repairs and painting.
After the vehicle had been at Macco about nine months, McCants had another car dealer inspect the vehicle who recommended additional paint work. It is unclear whether Maaco agreed to perform the additional work. Maaco did not charge a storage fee for keeping the car, but wanted the car off its lot.
In October of 2017, Hanson Butler, one of the co-owners of Maaco, began the process to have the Mustang declared abandoned under the Virginia Abandoned Vehicle Act, which required the DMV to contact the owner of the vehicle. McCants denied receiving the notice, which was sent to an address in Michigan, though Maaco typically billed McCants at a Richmond address. When McCants failed to recover the vehicle, Butler, not Maaco, received a certificate of title on November 27, 2017.
There was conflicting evidence as to the subsequent sale of the vehicle to another Macco employee for either $2000 or $3000. McCants learned of this sale only in February, 2018 and afterwards filed suit against Maaco and Butler for conversion. The jury awarded $78,500 and the circuit court denied a motion not withstanding the verdict based on the defense that the vehicle was properly determined to be abandoned.
On appeal, the Court of Appeals, Judge O'Brien joined by Chief Judge Decker and Sr. Judge Haley, address the application of the Abandoned Vehicle Act as a case of first impression and answers the following questions:
Does the former owner of a vehicle declared to be abandoned have standing to seek damages from the party that acquired title under the Act?
If a vehicle is declared abandoned and the evidence shows that the bailee followed the required procedures under the Act, can a jury nonetheless find that the bailee unlawfully converted the vehicle to his own possession and use?
It should surprise no one that, as the Court reached the second question, the answer to the first is "Yes." Obviously, if the former owner of the vehicle lacked standing to challenge the loss of the title under the abandoned vehicle process, his ability to recover would be moot.
The next question is a little tricky because it was Butler who actually received the title from the DMV, not Maaco. The Court reasoned, however, that Butler fell within the Act's definition of a person in possession of the vehicle after permission for the vehicle to remain on the property had been withdrawn. Frankly, I am a little concerned with this result. While Butler was a co-owner of Maaco, Maaco was a separate legal entity and the vehicle was on that entity's property. However, the Court of Appeals construed to Act liberally to find that Butler was the individual dealing with McCants and thus was in a position to claim "possession" of the vehicle.
Another aspect of this conclusion troubles me. If McCants was the one who obtained the title, why was Maaco in the suit at all? It is clear that Butler was the one who took possession of the vehicle and converted it to his own use by filing the application with the DMV and obtaining the title. Maaco arguably failed to safeguard the property bailed to it, but it never converted the vehicle to its own use. There were other theories of recovery, but the judgment was limited to conversion, so I don't see why Maaco was a party to the appeal. Perhaps those involved in this case need to remember the admonition of Mitt Romney that "Corporations are people, too."
I can hazard a guess that Butler and his partner probably didn't "bother with a lot of paperwork" when dealing with regular customers like McCants. The level of tolerance with which they dealt with him suggests the casual nature of the operation. Additionally, when the vehicle was sold to the employee, there was little or no documentation of the sale, as evidenced by the inability to recall the actual sale price.
At any rate, the real issue was whether Bulter could benefit from the DMV's sending to notice the Michigan when he (or rather Maaco) knew that McCants lived in Richmond. Well, as it turns out, the process for having a vehicle declared abandoned does not put the onus on the party seeking title to identify the owner or his place of habitation. Rather, once the request is filed with the DMV identifying the vehicle, it is the DMV which determines who the owner is and what the status of the vehicle may be by checking various state and national databases. McCants never updated his address on the title to the Mustang, so that's on him.
McCants lost ownership rights in the vehicle when he failed to respond to the DMV notice and so there was nothing for Butler to convert. The Court reverses and enters final judgment for Maaco and Bulter.
Now, as to the jury's award of $78,500 for a vehicle that was sold for just 2 or 3 thousand. A footnote indicates that McCants argued in the appeal that the jury could have found the conversion was the result of damage to the vehicle cause by Maaco that diminished its value. There are several problems with this argument, starting with using conversion as a theory for recovering from property damage. More to the point, the Court of Appeals stated that there was no evidence of damage being sustained to the vehicle prior to McCants' loss of ownership. So, that either means that a cherry 1970 Mustang was nearly totaled at some point between November of 2017 and January of 2018 when it was sold to the employee, or the jury based its award on a highly speculative estimate of the vehicle's value. It's just not reasonable that a car sold for a few thousand dollars in 2018 had been a show worthy model a year before absent some extraordinary occurrence. Most "antique" cars are rarely worth more than salvage value unless they have been well cared for or lovingly restored.
Today's second case is Roy Quionne Artis v. Commonwealth of Virginia, which involves a conviction for possession of Marijuana under Code § 18.2-250.1. Now, if you were to look at current volume of Title 18.2, you would find no section numbered 250.1, because that law was repealed in the 2021 Special Session effective July 1, 2021. Unfortunately for Artis, he was indicted under Code § 18.2-248.1 for possessing marijuana with intent to distribute on February 25, 2020.
When the matter came to trial in November of 2021, the jury was instructed that it could find Artis guilty of simple possession as a lesser included offense and it did so. Artis does not appear to have objected to this instruction, and so I was expect the Court of Appeals to go with "it became the law of the case" or perhaps that it was barred under Rule 5A:18. But Artis's counsel was too clever to fall into either of those traps. Instead, he argued that the conviction was void ab initio because simple possession was not a lesser included offense of possession with intent at the time of the trial. Because a court cannot convict a defendant of a non-existent crime, the appeal challenged the jurisdiction of the court to do so, which can be raised for the first time on appeal.
The opinion, by Justice Callins joined by Judges Humphreys and Athey, gives a lengthy history of the common law involving the absolute repeal of criminal statutes and the application of Code § 1-239, the general savings statute, and I certainly commend this opinion to anyone needing to explain that bit of arcane legal history. But, the short version is, "Nice try, Mr. Artis, but it was a crime to possess pot when you were in possession of pot."
It's not all bad news for Mr. Artis. The Court did agree that it was improper for the Commonwealth to wait until sentencing to introduce evidence of a prior conviction in order to seek a sentencing enhancement. Proof of a prior convicting is an element of the recidivist provision of former Code § 18.2-250.1. Given that the Commonwealth was aiming for possession with intent, it probably reasoned that putting on evidence of a prior simple possession conviction applicable only if it found Artis guilty of the lesser offense would at best confuse the jury and at worse give the jury the impression that the Commonwealth didn't thing its possession with intent case was strong. By choosing not to present the evidence at trial, the Commonwealth was barred from seeking the enhancement at sentencing. The case is remanded for re-sentencing.