Darcars Motors of Silver Spring, Inc. v. Borzym

MOYLAN, Judge. This appeal deals with a number of different aspects of the propriety of awarding punitive damages in a case involving the tort of conversion. The appellee and cross-appellant, Marcin Borzym, brought suit against the appellant and cross-appellee, Darcars Motors of Silver Spring, Inc. (“Darcars”) in the Circuit Court for Montgomery County. The case was tried by a jury, presided over by Judge Paul A. McGuckian, on April 2 and 3, 2001.

The jury returned a verdict in favor of Borzym, awarding him compensatory damages in the amount of $4,300 on the count charging conversion. No challenge is herein being made to that verdict or that award. With respect to the conversion, however, the jury also found that Darcars had acted with sufficient malice to warrant an award of punitive damages. After hearing additional testimony, the jury awarded punitive damages against Darcars in the amount of $100,000.

Judge McGuckian subsequently granted Darcars’s Motion for Judgment Notwithstanding the Verdict and/or Motion for Remittitur and reduced the amount of the punitive damage award to $25,000. All of the issues before us, both on appeal and cross-appeal, concern the award of punitive damages. On appeal, Darcars claims ²⁶ 1. that the evidence was not legally sufficient to support the necessary finding of actual malice; 2. that Borzym’s complaint did not adequately plead a claim for punitive damages; and 3. that the evidence of Darcars’s financial condition was not legally sufficient to support the final award of $25,000 in punitive damages. On his cross-appeal, Borzym claims that Judge McGuckian abused his discretion in reducing the punitive damages award from $100,000 to $25,000.

Factual Background The evidence permitted factual findings that on Friday evening, March 31, 2000, Borzym decided to purchase a 1999 BMW323Í from Darcars for $26,000. He met with the finance manager of Darcars to negotiate and iron out multitudinous details surrounding the purchase. As is so frequently true, “the devil is in the details.” Borzym filled out and signed that evening the following documents: 1) a credit application, 2) a purchase order, 3) a retail installment contract, 4) a supplementary agreement to a conditional sales contract, 5) an application for certificate of title, and 6) an agreement to provide accidental physical damage insurance. Borzym also gave to Darcars a cash deposit of $2,500.

Borzym was not permitted to take the BMW with him that evening, however, because he did not have the necessary information about the State Farm insurance policy that he claimed covered him; On Saturday morning, he returned to Darcars and provided the policy information to the finance manager. He then left the dealership with the BMW. On Sunday, Borzym returned to Darcars and, without incident, picked up copies of the paperwork he had previously signed. By Monday morning, however, controversy began to develop between Borzym and Darcars about the accuracy of some of the information furnished by him, particularly information concerning his insurance coverage.

In a series of telephone calls over the next several days, Darcars insisted that Borzym ²⁷ come into the dealership immediately and provide accurate insurance information. Borzym kept postponing his return to the dealership, allegedly because his schedule did not permit it. On Thursday, April 6, the BMW was repossessed for Darcars by a repossession company. Prior to the repossession, Borzym had placed in the trunk of the BMW 1) his laptop computer, valued at $1,500; and 2) a CD collection, valued at $300.

Neither was returned to him. Nor did Darcars return to Borzym his $2,500 down payment. The non-return of those items was the basis for the verdict of unlawful conversion and the award to Borzym in the amount of $4,300. We reiterate that Darcars does not now challenge the legitimacy of that verdict.

The Requirement and Definition of Actual Malice It is well-settled Maryland law that an award of punitive damages is only permitted in a tort case if the plaintiff has proved that the tortfeasor acted with actual malice. As Judge Digges stated for the Court of Appeals in Siegman v. Equitable Trust Co., 267 Md. 309, 313-14 , 297 A.2d 758 (1972): In a tort case where punitive damages are permitted, in order to obtain such an award a plaintiff must prove actual malice. See also Battista v. Savings Bank of Baltimore, 67 Md.App. 257, 274 , 507 A.2d 203 (1986); Miller Building Supply, Inc. v. Rosen, 305 Md. 341, 348 , 503 A.2d 1344 (1986); D.C. Transit System v. Brooks, 264 Md. 578 , 287 A.2d 251 (1972); Daugherty v. Kessler, 264 Md. 281 , 286 A.2d 95 (1972); Associates Discount v. Hillary, 262 Md. 570 , 278 A.2d 592 (1971); St. Paul at Chase v. Mfrs. Life Insur., 262 Md. 192 , 278 A.2d 12 (1971); Damazo v. Wahby, 259 Md. 627 , 270 A.2d 814 (1970).

The social policy that is implemented by an award of punitive or exemplary damages was first explained by the Court of Appeals in 1884 in Phila., Wilm., & Balto. Railroad Co. v. Hoeflich, 62 Md. 300, 307 (1884): ²⁸ [T]o entitle one to [punitive] damages there must be an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act. It is in such cases as these that exemplary or punitive damages are awarded as a punishment for the evil motive or intent with which the act is done, and as an example or warning to others. (Emphasis supplied) (Quoted with approval in Davis v. Gordon, 183 Md. 129, 133 , 36 A.2d 699 (1944); Owens-Illinois v. Zenobia, 325 Md. 420, 455 , 601 A.2d 633 (1992); Ellerin v. Fairfax Savings, 337 Md. 216, 227 , 652 A.2d 1117 (1995)).

What has come to be the standard definition of actual malice in Maryland was that articulated by Judge Digges in Drug Fair v. Smith, 263 Md. 341, 352 , 283 A.2d 392 (1971): Actual or express malice may be characterized as the performance of an unlawful act, intentionally or wantonly, without legal justification or excuse but with an evil or rancorous motive influenced by hate; the purpose being to deliberately and wilfully injure the plaintiff. See also Schaefer v. Miller, 322 Md. 297, 300 , 587 A.2d 491 (1991); Henderson v. Maryland National Bank, 278 Md. 514, 519 , 366 A.2d 1 (1976); Siegman v. Equitable Trust Co., 267 Md. 309, 314 , 297 A.2d 758 (1972); Battista v. Savings Bank of Baltimore, 67 Md.App. 257, 274 , 507 A.2d 203 (1986). In Ellerin v. Fairfax Savings, 337 Md. 216, 228 , 652 A.2d 1117 (1995), the Court of Appeals added the observation that, “with regard to most types of tort actions, Maryland law has limited the availability of punitive damages to situations in which the defendant’s conduct is characterized by knowing and deliberate wrongdoing.” The Difference Between “Implied Malice” As a Rejected Standard and Implying “Malice” As a Legitimate Evidentiary Modality The very necessity of modifying the noun “malice” with the adjective “actual” strongly suggests that there is or recently has been a definitional problem in describing the predicate for ²⁹ a punitive damages award. Over the twenty year period from Smith v. Gray Concrete Pipe Co., 267 Md. 149 , 297 A.2d 721 (1972) through Owens-Illinois v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992), Maryland was plagued with two different forms of malice that could, under varying circumstances, support a punitive damages award.

To distinguish the two, we necessarily resorted to modifiers. The traditional malice that we have described above, which was Maryland’s exclusive form of malice prior to 1972 and which is Maryland’s exclusive form of malice today, we labeled “actual malice.” The other, or “non-actual” malice, emanating from the Smith v. Gray Concrete Pipe Co. case, we called “implied malice.” As Montgomery Ward v. Wilson, 339 Md. 701 , 728 n. 5, 664 A.2d 916 (1995) explained, “implied malice” was defined as “gross negligence involving wanton or reckless disregard” of the rights of others. Scott v. Jenkins, 345 Md. 21 , 29 n. 3, 690 A.2d 1000 (1997), further defined it as “non-intentional conduct so reckless or wanton as to be ‘grossly negligent.’ “ “Implied malice” did not require a “wilful or intentional injury” but “contemplate[d] conduct which [was] of an extraordinary or outrageous character.” Id. at 30 , 690 A.2d 1000 . During that twenty year period, a number of Maryland cases employed, at least for non-intentional torts, that alternative standard of malice.

H. & R. Block v. Testerman, 275 Md. 36 , 338 A.2d 48 (1975); Wedeman v. City Chevrolet, 278 Md. 524 , 366 A.2d 7 (1976); Nast v. Lockett, 312 Md. 343 , 539 A.2d 1113 (1988). After much criticism of “implied malice” as an alternative substantive standard for awarding punitive damages, the imminent demise of that alternative and lesser standard was foretold by the concurring opinion of Judges Eldridge, Cole, and Chasanow in Schaefer v. Miller, 322 Md. 297, 312-32 , 587 A.2d 491 (1991). The actual death knell for “implied malice” as a substantive standard finally sounded in Owens-Illinois v. Zenobia, 325 Md. at 450-60 , 601 A.2d 633 , in 1992, at least so far as non-intentional torts were concerned. Adams v. Coates, 331 Md. 1, 13 , 626 A.2d 36 (1993), administered the coup de grace to “implied malice” by insisting upon the “actual malice” standard for non-intentional and intentional torts alike. ³⁰ The history of the rise and fall of “implied malice” as a substantive standard for punitive damages awards was deftly traced by Judge Karwacki in Scott v. Jenkins, 345 Md. 21, 29-34 , 690 A.2d 1000 (1997).

What has now been decided, at the very least, is that the malice necessary to support an award of punitive damages must arise out of tortious conduct that is intentional and not out of a tort based on negligence, even gross negligence. The ghost of “implied malice” is so recently departed, however, that instead of using, as we might, the unadorned noun “malice” to refer to the single standard now in the field, we still feel compelled to distinguish “actual malice” from the memory of that dread something else still lurking in the near shadows. That linguistic ghost, moreover, still rises up as a snare to analysis in yet another regard. The participial phrase “implied malice” has had two widely disparate meanings.

It was for twenty years, as we have discussed, one of two. substantive standards for measuring the malice necessary to support a punitive damages award. Since 1992, it is no longer that. The notion of implied malice, on the other hand, always had, and still has, a second and very different meaning as an evidentiary device or decisional modality. The quality of malice, however it may substantively be defined, can only occasionally be proved by direct evidence.

Statements by a defendant such as, “I hate the plaintiff and, out of pure spite, I intend to injure him,” are rarely available as direct proof. The requisite state of mind, therefore, must frequently be proved circumstantially. Prom the very circumstances under which a tort is committed, we may sometimes be able to infer the malicious state of mind of the tortfeasor. Or we may say, changing the direction of the decisional process, the circumstances under which a tort is committed imply the malicious state of mind of the tortfeasor.

If the conclusion may be inferred from the factual predicate, the factual predicate implies the conclusion. The only difference is a grammatical one between the active and passive voices. ³¹ In that sense, even “actual malice” may be implied. It may be implied malice, procedurally, even if it is not “implied malice,” substantively. However clear that may be to the grammarian, however, it is, to be sure, a linguistic or analytic snare.

In Ellerin v. Fairfax Savings, 337 Md. at 228 -29 n. 8, 652 A.2d 1117 , Judge Eldridge noted that the term “implied malice” has sometimes been used not to refer to the now rejected substantive standard but to refer, instead, to the evidentiary device. The term “implied malice” has also been used with regard to the availability of punitive damages in certain types of tort cases which have allowed “malice” to be “implied” from another element of the tort. See, e.g., Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 448 , 340 A.2d 705, 709-710 (1975) (upholding a punitive damages award in a false arrest case because “malice may be implied from ... want of probable cause in a case of false arrest”); Safeway Stores v. Barrack, 210 Md. 168, 177 , 122 A.2d 457, 462 (1956) (in a malicious prosecution action, malice inferred from the want of probable cause is sufficient to sustain a punitive damages award); McNamara v. Pabst, 137 Md. 468, 473 , 112 A. 812, 814 (1921). (Emphasis supplied).

In Montgomery Ward v. Wilson, 339 Md. at 728 n. 5, 664 A.2d 916 , the Court of Appeals referred again to the use of the term “implied malice” to refer to the evidentiary device. It refers not to a relationship between the elements of the malicious prosecution tort, whereby “malice” is implicit in the other elements of the tort, but to the fact that a jury is permitted to infer the malice required to establish the tort from proof of lack of probable cause. Thus, the concept of “implied malice” describes a method of proof, rather than a particular mental state. The term “inferred malice” would, probably convey this concept more accurately.

(Emphasis supplied). Precisely because they carry the same linguistic label, we must be careful to distinguish the former substantive ³² standard from the evidentiary device. . The distinction is critical because, although “implied malice” as a substantive standard for justifying a punitive damages award is now dead, the implying of malice as an evidentiary device or decisional modality is very much alive and well. “Actual malice,” the only remaining substantive standard, may, as a mode of proof, be inferred from predicate circumstances; to wit, the predicate circumstances imply the “actual malice.” The only reason, other than to avoid confusion with the late Substantive standard, that we do not attach to “actual malice” the past participle “implied” is that when “malice” is the object of the verb and the sentence is in the passive voice, proper linguistic usage dictates using the past participle “inferred” instead. Thus, even after Owens-Illinois v. Zenobia, we may go on implying and inferring “actual malice” just as we have always done.

When we have done so, however, the proper participial modifier should be “inferred.” On the other hand, to mix up or confuse imply and infer is simply a common solecism and the intended meaning is not in any way changed. Maryland has consistently recognized the validity of allowing “actual malice” to be inferred from, to wit, to be implied by, circumstantial evidence. In McClung-Logan v. Thomas, 226 Md. 136, 148 , 172 A.2d 494 (1961), the Court of Appeals clearly stated: Malice, fraud, deceit and wrongful motive are oftenest inferred from acts and circumstantial evidence. They are seldom admitted and need not be proved by direct evidence.

(Emphasis supplied). The fullest exposition of the legitimacy of this evidentiary device is that by Judge Levine in Henderson v. Maryland National Bank, 278 Md. 514, 520 , 366 A.2d 1 (1976): Appellant points to no direct evidence of an evil motive, nor, as Maryland National concedes is he required to produce such proof to establish actual malice. Although utterances reflecting personal animosity may well be the most direct proof of actual malice, we have never held them to be ³³ the exclusive means by which that requirement may be met. In the commercial sphere, at least, where an impersonal relationship is more likely to prevail, such emotions as anger or spite are not always vented in a direct manner, and not infrequently find their expression in the facts and circumstances surrounding the tortious conduct. “Malice, fraud, deceit and wrongful motive are oftenest inferred from acts and circumstantial evidence.

They are seldom admitted and need not be proved by direct evidence.” Our inquiry, then, narrows to the question whether appellant presented such facts as would permit the jury to infer that Maryland National acted with actual malice, that is, whether there was sufficient circumstantial evidence of actual malice to warrant submission of the issue to the jury. (Emphasis supplied). In the landmark concurring opinion of Judges Eldridge, Cole, and Chasanow in Schaefer v. Miller, 322 Md. at 326-27, 587 A.2d 491 , it was observed: Actual malice, being a state of mind, can obviously be inferred from other facts, such as statements or actions which clearly indicate ill will. (Emphasis supplied).

In Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 65 , 502 A.2d 1057 (1986), Judge Bloom stated for this Court: Actual malice may be inferred from circumstantial evidence. Our inquiry, therefore is whether there was evidence from which the jury could infer that the cross-appellants acted with actual malice. We find there was evidence adduced from ivhich the jury could infer that FMCC’s representatives harbored actual malice toward Verna. (Emphasis supplied).

See also Battista v. Savings Bank of Baltimore, 67 Md.App. 257, 274 , 507 A.2d 203 (1986) (“Actual malice may, of course, be inferred from circumstantial evidence.”). ³⁴ The Tort of Conversion May Serve As a Predicate From Which to Infer “Actual Malice” It is also a well-settled principle of law that the tort of conversion can serve, and frequently has served, as a launching pad for punitive damages. As the resolution of the “actual malice” versus “implied malice” controversy has made clear, the presence of malice is not necessarily inherent in the commission of a conversion, and a finding of malice, therefore, does not automatically follow from a finding that a conversion occurred. As will be examined in more detail, however, the circumstances surrounding the conversion and the manner in which it was committed frequently provide a factual predicate from which actual malice can be, though it need not be, inferred. The Court of Appeals affirmed awards of punitive damages arising from the tort of conversion in McClung-Logan v. Thomas, 226 Md. 136, 148-49 , 172 A.2d 494 (1961), and Henderson v. Maryland National Bank, 278 Md. at 519-23, 366 A.2d 1 .

On three other occasions, the Court of Appeals entertained the theoretically legitimate possibility of a conversion’s giving rise to an award of punitive damages but held that the circumstances under which the conversion was committed did not amount to a prima facie case of actual malice. Siegman v. Equitable Trust Co., 267 Md. 309, 314 , 297 A.2d 758 (1972); Food Fair Stores v. Hevey, 275 Md. 50, 53-57 , 338 A.2d 43 (1975); K & K Management v. Lee, 316 Md. 137, 174-79 , 557 A.2d 965 (1989). This Court affirmed a punitive damages award in a case of conversion in Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 65-66 , 502 A.2d 1057 (1986). On three other occasions, this Court entertained the theoretically legitimate possibility of a conversion’s giving rise to an award of punitive damages but held that the circumstances under which the conversion was committed did not, as a matter of law, amount to a prima facie case of actual malice.

Parlett Ford, Inc. v. Sosslau, 19 Md.App. 320, 326-28 , 311 A.2d 443 (1973); Lawrence v. Graham, 29 Md.App. 422, 428-29 , 349 A.2d 271 (1975); Battista v. ³⁵ Savings Bank of Baltimore, 67 Md.App. 257, 274-75 , 507 A.2d 203 (1986). 1 1 Dan B. Dobbs, The Law of Torts (2001), § 67, p. 152, points out that some, but not all, conversions will permit an award of punitive damages. Although the rules for allowing punitive damages may be expressed in many ways, the general principle is that punitive damages are permissible only when the defendant has engaged in serious misconduct coupled with a reckless or malicious state of mind. Some conversion cases fall into this category and permit the award of punitive damages. (Emphasis supplied).

The Tort of Conversion: The Physical Acts Because the circumstances under which the tort of conversion occurs may sometimes, but do not always, serve as ³⁶ a factual predicate from which “actual malice” may be inferred, it behooves us to look more closely at the essential characteristics of the tort itself. Deferring for the moment a comparison of the intent element of the. tort of conversion and the mens rea of theft, we find enlightening the similarity between the physical acts of the tort and the actus reus of the crime. Although the tort, unlike the crime, is limited to personal property, the physical acts that constitute the tort are also physical acts that satisfy the definition of the crime. As early as 1909, the Court of Appeals in Merchants’ Bank v. Williams, 110 Md. 334, 351-52 , 72 A. 1114 (1909), referred to the two-pronged character of the tort.

Conversion, in the sense of the law of trover, consists either in the appropriation of the property of another, or in its destruction, or in exercising dominion over it in defiance of the owner’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. See also Hammond v. DuBois, 131 Md. 116, 153 , 101 A. 612 (1917). With respect to the tort, Interstate Insurance Co. v. Logan, 205 Md. 583, 588-89 , 109 A.2d 904 (1954), has explained: A “conversion” is any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it. Kalb v. Vega, 56 Md.App. 653, 665 , 468 A.2d 676 (1983), stated: Conversion has been generally defined as the wrongful exercise of dominion by one person over the personal property of another.

Whereas the tort of conversion was once thought to require, like common law larceny, a trespassory taking and an asportation, the scope of its prohibition is now deemed to be, as with statutory theft, much broader. In Kalb v. Vega, 56 Md.App. at 666 , 468 A.2d 676 , Judge Wilner explained for this Court: ³⁷ Initially, the Court of Appeals spoke of conversion as the wrongful taking or asportation of a chattel with the intent by the taker to appropriate it to his own use. See Harker v. Dement, 9 Gill 7, 17 (1850). Later cases, however, have made clear that the gist of the tort is not necessarily the manner of acquisition of the property by the defendant, but rather his wrongful exercise of dominion over it.

See Kirby v. Porter, 144 Md. 261 , 125 A. 41 (1923); Saunders v. Mullinix, 195 Md. 235 , 72 A.2d 720 (1950). That may involve nothing more than the improper withholding of the property from the rightful owner ....“ (Emphasis supplied). In Saunders v. Mullinix, 195 Md. 235, 240 , 72 A.2d 720 (1950), the Court of Appeals had earlier noted that the tort of conversion covers not only the initial acquisition of the personal property of another but also the subsequent exerting of unauthorized control over the property: [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 forcible dispossession of property to constitute an act of the defendant a conversion.

See also Lawrence v. Graham, 29 Md.App. 422, 427-28 , 349 A.2d 271 (1975). Professor Dobbs, op. cit., at § 64, p. 136, points out that the standard definition of conversion is the one first articulated by Thomas M. Cooley, Law of Torts 448 in 1878: Any distinct act of dominion, wrongfully exerted over one’s property in denial of his right or inconsistent with it. The Maryland Civil Pattern Jury Instructions (2d ed.1984) has broken the instruction as to conversion down into two separate instructions so as to cover two distinct modalities. MPJI 16:4 deals with an unauthorized initial taking.

A conversion occurs when a person without authority or permission intentionally [takes the personal property of ³⁸ another] [deprives another of possession of personal property]. MPJI 16:5 deals with a wrongful detention. A wrongful keeping takes place when a person who rightfully obtained possession of personal property of another [refuses on proper demand to give back the property] [[uses] [disposes of] the property in any unauthorized manner]. These definitions of the physical acts that constitute the toi*t of conversion could as readily be describing the actus reus of the crime of theft.

In terms of its actus reus, the core provision of the consolidated theft law is Maryland Code, Art. 27, § 342(a), which provides in pertinent part: Obtaining or exerting unauthorized control. — A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner____ Section 340(g)(1) defines “obtain”: (g) “Obtain” means: (1) In relation to property, to bring about a transfer of interest or possession, whether to the offender or to another.... Section 340(d) defines “exerts control”: “Exerts control” includes but is not limited to the taking, carrying away, appropriating to one’s own use or sale, conveyance, transfer of title to, interest in, or possession of property. The key actus reus of theft is unquestionably an instance of the tort of conversion in its most virulent form. Dobbs, § 65, p. 138, also makes clear that an act of theft, albeit not necessary to a conversion, is a classic instance of a conversion.

As the Restatement recognizes, conversion can be committed in many different ways. A taking of the chattel by a thief is a simple and core example. ³⁹ (Emphasis supplied). As Saunders v. Mullinix, 195 Md. at 240 , 72 A.2d 720 , also made clear: A conversion may consist of a wrongful, tortious or unlawful taking of property from the possession of another by theft. This overlap between the crime and the tort makes eminently good sense because a crime against property is ipso facto a tort against the property owner.

Before the passage of the Consolidated Theft Act in 1978, the pre-existing crimes of both embezzlement and larceny after trust regularly described the situation wherein the defendant, after having lawfully acquired a chattel in the first instance, was thereafter guilty of the unlawful conversion of that chattel to his own use. Just as assault and battery is both a crime and a tort, so too is the unlawful conversion of someone else’s property. The victimized owner may, of course, seek to bring criminal charges for theft, but may also seek civil redress by suing for the tort of conversion. In this case, the physical acts that constituted the conversion did not involve a trespassory taking or an unlawful asportation in the first instance.

Accepting, as we must and as the jury found, Borzym’s best version of the evidence, Borzym voluntarily handed over to Darcars the $2,500 in cash representing his down payment on the BMW. 2 By the same token, the laptop computer and the CD collection were simply in the trunk of the BMW when it was lawfully repossessed. 3 ⁴⁰ The physical gravamen of the conversions in this case consisted, rather, of the retaining and the continued exerting of dominion and control over both the cash and the other personal property to the detriment of Borzym, the rightful owner. When Borzym demanded the return of his property, he was disdainfully told to “get lost” or to “call his attorney.” Q. And what was discussed in that meeting? A. I came in. I asked why was my car repossessed.

Q. And what was the response? A. • They said, “Well, because you didn’t pay anything, and we took your car away.” Q. Just go ahead and tell us what you said and what happened in the rest of the conversation. A. Well, I said, I paid the money, and I expect to have my car back; and either I want my money or I want my — I want all my money and my belongings if you are going to keep the car. Q. How much money did you ask them for?

A. $2,500. Q. Did you tell them about anything in the car? A. Yes, I did. Q. What was in the car?

A. My laptop, my CDs. Q. And what was their response? A. Forget about it. Get out of here.

I mean, call your attorney. Q. And did they say where the car was? A. Yes. they said the car was in a different lot. They don’t have the car.

Q. Anything else said about your property in the car? ⁴¹ A. Just forget about it, just get out of the office, get lost. (Emphasis supplied). The only other physical aspect of the tort worthy of discussion is the extent or seriousness of the deprivation suffered by the victim. The degree of deprivation is what traditionally separated the tort of conversion, historically redressed by the action of trover, and the lesser tort of trespass.

Professor Dobbs, op. cit., § 65(6), pp. 144-45, discusses this difference: When the defendant uses the plaintiffs chattel or interferes with it but does not damage it or dispossess the plaintiff for any significant time, rules provide little assistance. If the use or interference is substantial enough, the court may find a conversion. If it is not, the court will reject a conversion approach and the defendant will be liable at most for a trespass to chattels. In this setting the defendant’s intent or bad faith becomes important, along with the duration of the interference.

The defendant who uses your desk to write a letter is probably not a converter even if you have told him not to do so; if he uses it for months and claims ownership, he probably is. As already indicated, even a minor trespass may warrant liability for conversion if, in the course of the trespass, substantial though unintended harm results to the chattel. In Staub v. Staub, 37 Md.App. at 143-46, 376 A.2d 1129 , this Court discussed at length the difference in degree between a more serious conversion of property and a less serious trespass to property. In the case before us, neither the $2,500 nor the laptop computer nor the CD collection was ever returned and the deprivation was, therefore, maximal.

The Tort of Conversion: The Mentid Elements It is with regard to the respective mental elements that a critical difference appears between the crime of theft and certain less malevolent instances of the tort of conversion. It is exceedingly difficult, if not impossible, to hypothesize a theft that is not also a conversion. On the other hand, there are many conversions that do not amount to theft. A close ⁴² comparison of the respective mental elements may be valuable, particularly with respect to the aggravating element of “actual malice.” A. The Tort of Conversion, With or Without Malice, Does Not Require An Animus Furandi As we compare the mental elements of 1) the tort of conversion without “actual malice,” 2) the tort of conversion with “actual malice,” and 3) the crime of theft, one aspect of the mens rea of theft turns out to have no significance for our analysis of punitive damages in conversion cases.

That immaterial aspect of the theft mens rea is the requirement of an animus furandi. Section 342(a), (b), and (c) all require that the alleged thief have “the purpose of depriving the owner of the property.” Section 340(e), in turn, defines “deprive.” “Deprive” means to withhold property of another:' (1) Permanently; or (2) For such a period as to appropriate a portion of its value; or (3) With the purpose to restore it only upon payment of reward or other compensation; or (4) To dispose of the property and use or deal with property so as to make it unlikely that the owner will recover it. Although the tort of conversion requires no such animus furandi, the intentional nature of the tort would nonetheless, were it required to do so, almost inevitably satisfy the extremely watered-down definition of theft’s animus furandi. As Keys v. Chrysler Credit Corp., 303 Md. 397, 414 , 494 A.2d 200 (1985), points out, “conversion is an intentional tort” and requires “an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiffs rights.” When, therefore, the deprivation is, in its extent and duration, significant enough to qualify as the tort of conversion, rather than as a mere trespass, such an intentional deprivation would almost invariably satisfy any animus furan ⁴³ di requirement.

In that respect, the tort and the crime remain essentially parallel. B. Conversion Is an Intentional Tort As we have noted above, Keys v. Chrysler Credit Corp., 303 Md. at 414 , 494 A.2d 200 , held squarely that “conversion is an intentional tort.” The required intent is the “intent to exercise a dominion or control over” the property of another. Professor Dobbs, op. cih, § 62, pp. 128-29, elaborates on the intentional quality of the tort: Conversion is an intentional tort. There is no such thing as a conversion by accident.

The defendant may accidently damage property and may be liable for doing so if he is negligent or if the facts warrant imposition of strict liability; but negligent damage, destruction, or taking without an intent to affect the chattel at all is not a conversion. The intent required is the defendant’s intent to exercise control of or dominion over the goods, no more. As in other cases, intent is shown either by the defendant’s purpose to affect the goods in question or by his substantial certainty that they will be affected. The intent required to show conversion is exactly analogous to the intent required to prove a trespass to land.

In neither case is the defendant’s bad motive or good faith ordinarily relevant except on the question of punitive damages. The verdict in this case that the tort of conversion was committed thereby established that the tortious wrongdoing now in issue was intentional and was not an inadvertent or negligent oversight. The significance of this intentional mental element to the issue of actual malice was noted by Judge Eldridge in Ellerin v. Fairfax Savings, 337 Md. 216, 233 , 652 A.2d 1117 (1995). When a tort was committed willfully and with knowledge of the wrong, instead of by ignorance, mistake or negligence, this Court very early held that it was committed with the requisite “bad motive” to allow punitive damages.

Thus ⁴⁴ in Ridgely v. Bond & Wife, 17 Md. 14, 20-21, 22-23 (1861), an action of trespass quare clausum fregit, this Court agreed that one who “may innocently appropriate his neighbor’s property, supposing it to be his own,” is liable only for compensatory damages, but when he “does so, knowing it not to be his own, he is liable in vindictive damages.” ... More recently, this Court has reaffirmed the principle that punitive damages liability must be based on the defendant’s conscious wrongdoing. C. “Claim of Right” and “Honest Belief” Defenses It is another mental aspect of the crime of theft (actually, two affirmative defenses based on a defendant’s mental perception), however, that looms large in deciding which tortious conversions have been committed with actual malice and which have not. In the consolidated theft law, § 343(c)(1) and (2) expressly provide: It is a defense to the offense of theft that: (1) The defendant acted under a good faith claim of right to the property involved; (2) The defendant acted in the honest belief that he had the right to obtain or exert control over the property as he did[.] When either of those closely related defenses could be successfully asserted at a criminal trial for theft, the tort of conversion under the same circumstances has invariably been held, as a matter of law, to have been committed without the actual malice necessary to support an award of punitive damages.

As to the distinction between the closely related “claim of right” and “honest belief’ affirmative defenses, see Moylan, Maryland’s Consolidated Theft Law and Unauthorized Use (MICPEL, 2001), § 12.3, p. 85: In trying to get a firm grip on the precise nature of the claim of right defense, the key word that emerges is “claim” in the sense of a formal legal action or “claim” that has already been or could readily be filed in court. Almost always involved is some sort of prior commercial or other ⁴⁵ legal relationship between the parties, with the property in question being either the subject of that relationship or at least a pawn in a contest growing out of that relationship. Where the claim of right defense is properly interposed, the property has generally not been taken by stealth or in ignorance as to whom it belongs; the conversion, rather, is more frequently by way of a bold and public assertion of a superior right to the property. Whether the case law will ultimately treat it as such is not yet certain, but the claim of right defense has every characteristic of a true affirmative defense with all the attendant procedural consequences.

The honest belief defense, by contrast, is more a simple negation of a criminal mens rea, frequently the denial of scienter based on a defendant’s ignorance or misunderstanding of key circumstances. The legally adequate honest belief defense in Sibert is a case in point. “[I]t is clear that this defense operates to negate the mens rea for the offense of theft, thereby providing a total defense.” The defendant Sibert testified that he had purchased the stolen doors in issue in the honest belief that they were not stolen. The goods were purchased from one who had just attended an auction. The purchase price represented a good bargain but not a ridiculously good bargain. “[T]he above makes clear that Sibert produced evidence sufficient to generate a jury issue as to the honest belief under Sect. 343(c)(2).” (Emphasis supplied).

The leading Maryland case on the “claim of right” defense is Sibert v. State, 301 Md. 141 , 482 A.2d 483 (1984). Sibert pointed out, 301 Md. at 147-48 , 482 A.2d 483 , that “the ‘claim of right’ defense in Maryland originated in Saunders v. Mullinix,” supra. According to this legislative commentary, the claim of right defense in Maryland originated in Saunders v. Mullinix, 195 Md. 235 , 72 A.2d 720 (1950). The Saunders Court, in referring to this defense in dicta, stated: It is a generally accepted rule in criminal prosecutions that one who either takes or retains the property of another without the latter’s consent for a debt which he in ⁴⁶ good faith claims to be due him by the owner of the property is not guilty of larceny, because the existence of the debt or the bona fide belief in its existence shows a lack of felonious intent in the taking or detention of the property.

Id. at 240 , 72 A.2d at 722 . We note parenthetically that Saunders was a civil conversion case, and the court discussed the claim of right defense by contrasting it to the tort of conversion. (Emphasis supplied). The availability of such a defense, Saunders v. Mullinix established, would not negate the tort of conversion generally, although it would negate the aggravating circumstance of “actual malice.” In Keys v. Chrysler Credit Corp., 303 Md. at 414 , 494 A.2d 200 , Judge McAuliffe explained the difference between the required intent and the irrelevant improper motive.

Conversion is an intentional tort, but the intent that must be shown does not necessarily involve an improper motive. The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiffs rights. A purchaser of stolen goods or an auctioneer who sells them in the utmost good faith becomes a converter, since the auctioneer’s acts are an interference with the control of the property.

A mistake of law or fact is no defense. “Persons deal with the property in chattels or exercise acts of ownership over them at their peril,” and must take the risk that there is no lawful justification for their acts. W. Keeton, Prosser & Keeton on Torts, § 15. Thus, if Appellant is able to prove a conversion she will be entitled to appropriate damages, even though the jury may fail to find an improper motive necessary to sustain an action for malicious use of process. (Emphasis supplied).

All six of the Maryland cases that have held that the tort of conversion was committed, as a matter of law, without “actual ⁴⁷ malice” were cases in which plausible claims of right or entitlement were asserted and were essentially uncontradicted. They were claims that would have qualified, had the defendants been tried for theft, as “claim of right” or “honest belief’ defenses under § 348(c)(1) or (3). In Siegman v. Equitable Trust Co., 267 Md. 309 , 297 A.2d 758 (1972), a defendant bank was openly attempting to recover a debt from one of its depositors. Judge Digges explained, 267 Md. at 316, 297 A.2d 758 : Here, all the record indicates is that the bank, on a mistaken understanding of the law, attempted to satisfy out of a joint checking account the individual debt of Mr. Siegman created by his indorsement on a forged check.

There is no evidence that the bank either converted his funds or refused to honor his checks out of evil motives intended to injure the Siegrnans. Although it acted so as to damage the appellants, the bank was motivated by self interest rather than by a malicious desire to harm the appellants.... Although the bank may not at all times act with charity for all, in this case it acted with malice toward none. The holding of the Court of Appeals was clear: [WJhere an act, though wrongful, is committed in the honest assertion of a supposed right and without any evil intention, there is no ground on which punitive damages can be awarded. 267 Md. at 314, 297 A.2d 758 (emphasis supplied).

Food Fair Stores v. Hevey, 275 Md. 50 , 338 A.2d 43 (1975), involved a dispute between the Food Fair Stores and two of its employees over their entitlement to “money allegedly due them under that company’s ‘Incentive Bonus and Retirement Plan.’ ” 275 Md. at 51, 338 A.2d 43 . Judge Levine held for the Court of Appeals: Furthermore, when the decision to deny benefits here was made in May 1970, 20 months prior to this Court’s decision in Greeley, Food Fair believed itself legally justified, since the weight of authority in other jurisdictions tended to uphold anti-competitive clauses in incentive and ⁴⁸ bonus plans.... It has long been recognized in Maryland that where an act, though wrongful in itself, is committed in the honest assertion of a supposed right or in the discharge of duty, or without any evil or bad intention, there is no ground on which punitive damages can be awarded. 275 Md. at 56, 338 A.2d 43 (emphasis supplied). In K & K Management v. Lee, 316 Md. at 174-79 , 557 A.2d 965 , the Court of Appeals held that, notwithstanding the defendants’ liability for the tort of conversion, there was insufficient evidence of “actual malice” to support an award of punitive damages.

The entire litigation grew out of a commercial dispute between the defendant management of a motel and the plaintiffs with whom the management had contracted to run a restaurant in the motel. Parlett Ford, Inc. v. Sosslau, 19 Md.App. 320 , 311 A.2d 443 (1973), involved a contractual dispute between an automobile owner and an auto repair shop over the right of the repair shop to hold the automobile until, in its judgment, the repair bill had been fully paid. In Lawrence v. Graham, 29 Md.App. 422 , 349 A.2d 271 (1975), there was a rancorous dispute between the purchaser and the seller of an automobile and the repossession of the automobile by the seller was a skirmish in that battle over legal ownership. Judge Mason, 29 Md.App. at 429 , 349 A.2d 271 , spoke for this Court.

Under the circumstances here, Lawrence seized the Cadillac under an honest but mistaken assertion of right. Therefore, punitive damages should not have been awarded under any theory since malice was totally lacking in either form, actual or implied. (Emphasis supplied). Battista v. Savings Bank of Baltimore, 67 Md.App. 257 , 507 A.2d 203 (1986), was also a case arising out of a contractual dispute between the purchaser of an automobile and the bank to which monthly payments were due.

There had been a number of late payments that had been accepted before the ultimate repossession of the automobile by the bank. The key ⁴⁹ question was whether the bank, by accepting late payments on a number of occasions, had waived its right to repossess when a subsequent payment was not timely made. Judge William Adkins wrote for this Court, 67 Md.App. at 275 , 507 A.2d 203 : The Bank was wrong in its legal conclusion that it was entitled to repossess the car, or at least it was permissible for a jury so to decide. It could, however, have reached that conclusion on a mistaken but good faith assumption that the law as to waiver was other than we have held it to be.

(Emphasis supplied). We held, as a matter of law, that actual malice had not been proved and that a punitive damage claim had properly been taken away from the jury. As these cases all illustrate, if a defendant, in a criminal trial for theft, would have a valid “claim of right” or “honest belief” defense, a similarly situated civil defendant would also have a valid defense against a claim that his tort of conversion had been aggravated by “actual malice” so as to support an award of punitive damages. If the jury in this case 1) had found that Darcars had committed the tort of conversion in repossessing the BMW and 2) had the award of punitive damages been based on that repossession and nothing else, the six cases discussed above would have given Darcars a very plausible argument that a prima facie case of actual malice had, as a matter of law, not been established.

That, however, was not what the jury found in this case. Sufficiency of the Evidence To Permit a Finding of Actual Malice Darcars does not now question the submission of the issue of conversion to the jury. Both in brief and in oral argument, Darcars concedes the sufficiency of the evidence to prove the conversion of both 1) the $2,500 down payment and 2) the laptop and CD collection with their combined value of $1,800. The finding of actual malice and the consequential award of punitive damages in this case was not predicated on Darcars’s ⁵⁰ repossession of the BMW.

That repossession was not unlawful. Indeed, summary judgment was granted prior to trial in favor of Darcars on the count charging unlawful repossession. The malice that supported the punitive damages award was manifested by Darcars’s conversion of Borzym’s cash down payment, laptop computer, and CD collection, and on that conversion alone. With respect to that conversion, moreover, we note here as the Court of Appeals noted in Henderson v. Maryland National Bank, 278 Md. 514, 519-20 , 366 A.2d 1 (1976): In stipulating that it was guilty of conversion, Maryland National has effectively conceded that it acted intentionally and without legal justification.

In that case, the defendant Maryland National Bank acknowledged that, because of a series of clerical errors, its repossession of the plaintiffs automobile constituted a tortious conversion. Arguing that the error arose out of a complicated dispute over one arguably late payment, the bank denied any actual malice. The Court of Special Appeals agreed with the bank and vacated the award of punitive damages to the plaintiff. The Court of Appeals, in turn, reversed this Court and held that, based on a heated telephone exchange between a bank employee and the plaintiff, there was a genuine jury issue as to actual malice.

According to the testimony presented by appellant, the Hendersons’ final telephone conversation with a bank employee would have revealed the history of appellant’s travails, including his contacts with other employees whom he identified. In addition, the employee knew that the Hendersons claimed to have mailed the photocopy of the cancelled check as requested and that they were persisting vehemently in their assertion that they had made full payment. The final conversation ended abruptly when the employee asked, “‘Are you going to bring your records down here and prove you paid for your ear?’ ” Mrs. Henderson flatly refused and hung up the phone. With that, the car was summarily repossessed.

No effort was ⁵¹ made to contact the other employees, nor was any warning given the Hendersons. Under all the circumstances reflected by appellant’s evidence, a reasonable and probable inference arose that the purpose of the repossession was not, as argued by appellee, to obtain payment on behalf of the bank. Instead, an inference arose that the employee, provoked at appellant’s angry refusal to bring the records from Alexandria to College Park, repossessed the car to force production of the records or, far worse, to punish him for his refusal. 278 Md. at 528, 366 A.2d 1 (emphasis supplied). We can see no meaningful distinction between the bank employee’s response in that ease of “Are you going to bring your records down here and prove you paid for the car?” and Darcars’s employee’s response in this case to Borzym’s request for the return of his cash down payment and other belongings, “Forget about it.

Get out of here. Call your attorney. Get lost.” Indeed, in McClung-Logan v. Thomas, 226 Md. 136, 149 , 172 A.2d 494 (1961), the finding of actual malice was based upon the permissible inference that the seizure of the plaintiffs tractor had been motivated by the defendant’s having been “provoked with [plaintiffs] numerous requests” and having “determined to put a stop to the complaints by seizing the tractor.” There was ample evidence, both factual and circumstantial, from which a jury could find that appellant acted wilfully, wantonly, wrongfully, and maliciously in utter disregard of appellee’s rights. It was a reasonable and proper inference that appellant became provoked with appellee’s numerous requests that the defective condition of the tractor be corrected and that it determined to put a stop to the complaints by seizing the tractor and forcing the appellee to sign a release of all claims that he might have.

(Emphasis supplied). In Hamilton v. Ford Motor Credit Co., 66 Md.App. 46 , 502 A.2d 1057 (1986), a credit company repossessed a track be ⁵² cause of a late payment and then refused to permit the buyers to redeem it. The credit company was found to have committed a tortious conversion. In affirming an award of punitive damages, Judge Bloom pointed out for this Court, 66 Md.App. at 65-66 , 502 A.2d 1057 , that the required actual malice need not be aimed at the buyer, the direct victim of the conversion, but may be directed at a co-buyer.

Cross-appellants correctly point out that there was no evidence indicating malice toward Sharon, the party entitled to recover for the conversion. Malice toward her, however, is not essential to recovery of punitive damages. It is enough that a tort was committed and that the tortious conduct was found to have been motivated by malice. Punitive damages are awarded not as compensation to the victim of tortious conduct,' but as punishment for the malice that motivated the tort.

It may be a rare case in which a tortfeasor will wrong one person out of malice toward another, but this is such a case. (Emphasis supplied). The actual malice directed toward the co-buyer, in turn, was inferrable from the “excessively rude and offensive conduct” toward her by one of the employees of the credit card company. In this case, Darcars never even asserted, let alone offered plausible evidence, that it had any “claim of right” or “honest belief’ with respect to the $2,500 cash down payment, the laptop computer, or the CD collection.

Rather than make any argument that it was entitled to retain some or all of the, down payment, Darcars’s only position with respect to it was that it had never received such a down payment. With evidence to support its finding, the jury found otherwise. With respect to the laptop computer and the CD collection, Darcars offered not one word of testimony with respect to those items. Darcars was apparently so disdainful of the claim that it offered no defense whatsoever as to it.

All we have, through the testimony of Borzym, is the collective response of Darcars’s financial services manager and two other employees, when requested by Borzym to return his ⁵³ cash, his laptop, and his CD’s, “Forget about it. Get out of here. Call your attorney. Get lost.” Those facts would be legally sufficient to constitute a prima facie case of theft itself.

A conversion of that variety, without the ameliorating benefit of what in theft law would be the defense of either “claim of right” or “honest belief,” qualifies for what Scott v. Jenkins, 345 Md. at 33 , 690 A.2d 1000 , described as a “sense of conscious and deliberate wrongdoing,” a “wrongful motive,” an “intent to injure,” to wit, “actual malice.” We hold that the evidence was, therefore, legally sufficient to permit the jury to infer that the conversion was motivated by such actual malice. The award of punitive damages was not improper. There Is No Correlation Between The Burden of Persuasion and The Burden of Production The only other argument that the appellant makes with respect to the legal sufficiency of the evidence is an argument that turns out to have nothing to do with legal sufficiency. Darcars quite correctly notes that Owens-Illinois v. Zenobia, 325 Md. 420, 465-69 , 601 A.2d 633 (1992), raised the burden of persuasion for proving punitive damages from the level of a bare preponderance of the evidence to the level of the evidence’s being clear and convincing.

Darcars then ritualistically repeats and intones that litany of the “clear and convincing burden” in virtually every other sentence, as if that solemn incantation will produce some emasculating effect on Borzym’s burden of production on the issue of malice. Whatever the burden of persuasion was as to malice, however, it had no effect at all on the burden of production, which is our only concern. Persuasion involves convincing a jury, as a matter of fact, to varying levels of certainty. Production, by contrast, involves some minimal evidence of a proposition, as a matter of law.

The minimal legal requirement never changes, even if the burden of persuasion as to that proposition veers wildly upward or downward. ⁵⁴ Reserving the possibility of a rare exception in some hypothetical case in which scientific or mathematical probabilities are part of expert testimony, there is simply no correlation between the burden of persuasion and the burden of production. To raise or to lower the burden of persuasion has no impact at all on the burden of production. A burden of persuasion is simply a verbal formula by which the law attempts to communicate to lay jurors some sense as to the degree of certainty they should feel before returning various types of verdicts. In his concurring opinion in In re Winship, 397 U.S. 358, 368-73 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), Justice Harlan discussed the phenomenon of the burden of persuasion.

He observed: [A] standard of'proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions. 397 U.S. at 370 , 90 S.Ct. 1068 . See also Addington v. Texas, 441 U.S. 418, 423-25 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979); 9 Wigmore on Evidence pp. 404-433 (Chadburn rev.1981); Kaplan, “Decision Theory and the Factfinding Process,” 20 Stan. L.Rev. 1065, 1071-77 (1968).

The burden of production, by contrast, has nothing to do with whether evidence should be believed. Its concern is with the logical pertinence of evidence, if believed, validly to establish a required conclusion. The prima facie or legally sufficient case requires some competent evidence which, if believed and given maximum weight, would establish all of the required legal elements of the tort, the breach of contract, the crime, etc. That standard does not fluctuate with fluctuations in the burden of persuasion. To ratchet up the burden of persuasion with respect to an issue does not correspondingly ratchet up ⁵⁵ the burden of production.

If the burden of persuasion as to actual malice were raised yet again to the level of “beyond a reasonable doubt,” the burden of production would remain unchanged. If the burden of persuasion were to soar to the level of “to a mathematical certainty,” the burden of production would still remain unchanged. To raise the burden of persuasion is to heighten the level of certainty with which a fact-finder should believe a proposition to be true. To raise the burden of production, by contrast, would be to add a legal element as to which there must be some minimal evidence.

When it comes to production, the certainty of belief is already hypothesized as maximal. It is at the highest possible level and can go no higher. There is no interaction between the two burdens. The very different burdens are airtight compartments, and leakage should not be permitted from one into the other.

What Darcars remorselessly and unrelentingly keeps telling us, therefore, about the “clear and convincing” persuasion requirement is utterly immaterial to the legal sufficiency issue before us. Adequacy of the Pleading Relying on Scott v. Jenkins, 345 Md. 21 , 690 A.2d 1000 (1997), Darcars contends that the complaint 1) did not adequately plead a claim for punitive damages and 2) did not adequately allege the required element of actual malice. We do not agree. Darcars relies on the following language from Scott v. Jenkins, 345 Md. at 37 , 690 A.2d 1000 , to support its contention: [I]n order to properly plead a claim for punitive damages, a plaintiff must make a specific demand for that relief in addition to a claim for damages generally, as well as allege, in detail, facts that, if proven true, would support the conclusion that the act complained of was done with “actual malice. ” Nothing less will suffice.

(Emphasis supplied). Scott v. Jenkins, id., first requires that “a plaintiff must make a specific demand for [punitive damages] relief in addi ⁵⁶ tion to a claim for damages generally.” At the end of Count II, charging “Conversion and Punitive Damages,” Borzym demanded precisely what Scott v. Jenkins requires. WHEREFORE, Plaintiff demands compensatory damages against defendants in the fair and just sum of four thousand three hundred dollars ($4,300), and punitive damages in the amount of One Million Dollars ($1,000,000) plus costs and interest. (Emphasis supplied).

The second requirement of Scott v. Jenkins, id., is that the plaintiff “allege, in detail, facts that, if proven true, would support the conclusion that the act complained of was done with ‘actual malice.’ “ The first eleven paragraphs of the complaint, expressly incorporated into the second count, narrate all the events surrounding the controversy in exquisite detail. Paragraphs 12 through 15, expressly charging unlawful conversion and claiming punitive damages, further allege “facts that, if proven true, would support the conclusion that the act complained of was done with ‘actual malice.’ “ 12. The vehicle was wrongfully repossessed by Defendant, in violation of Plaintiffs property interest in the vehicle. When the vehicle was wrongfully repossessed, plaintiff had valuable property in the vehicle, valued at approximately $1,800.

In addition, the vehicle was valued at $26,000. Plaintiff had provided valuable consideration for the purchase of the vehicle, and had done everything required by the contract. 13. Furthermore, the plaintiff provided a cash down payment of $2,500 in cash, given to Douglas Quander. • Mr. Quander represented Defendant for the purpose of negotiating financing for the subject vehicle. Acting in concert with Defendant, he converted the $2,500 down payment after taking the payment in cash.

Although the contract for sale acknowledges that Plaintiff paid $2,500 as a down payment, Defendant denies that Mr. Quander received the funds. In essence, Mr. Quander and Defendant stole from Plaintiff ⁵⁷ the $2,500 Plaintiff paid as a down payment upon the vehicle. 14. Defendant’s actions described herein demonstrate actions taken with deliberation and planning. Defendant took the payment in cash, failed to give Plaintiff a receipt and did so with the intent to deny receipt of such payment and convert the funds.

In fact, Defendant failed to provide a copy of the contract to Plaintiff which evidenced the down payment, and did so only after Plaintiff returned the following day insisting that he be provided a copy. Such actions are outrageous, and done with wanton disrespect for plaintiff, and automobile customers in general. Such actions are deceitful and dishonest, and were designed to convert money and property from plaintiff 15. In regard to the laptop computer and CDs, Defendant refused to permit Plaintiff to retrieve his property from the vehicle after it was wrongfully repossessed, and refused to return the property to plaintiff thereafter.

Defendant thereby wrongfully converted Plaintiffs personal property, with the intent to use Plaintiffs personal property for