# In Re Brokers, Inc.

> United States Bankruptcy Court, M.D. North Carolina · June 17, 2009 · 407 B.R. 693

URL: https://www.frixlaw.com/law-library/cases/1538977

## Case

- **Full name:** In Re BROKERS, INC., Debtor
- **Court:** United States Bankruptcy Court, M.D. North Carolina
- **Decided:** June 17, 2009
- **Citations:** 407 B.R. 693; 2009 Bankr. LEXIS 1594; 2009 WL 1741569
- **Precedential status:** Published
- **Opinion:** Opinion by Carruthers
- **Judges:** Catherine R. Carruthers
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
CATHERINE R. CARRUTHERS, Bankruptcy Judge.
THIS MATTER came on before the Court for trial in Winston-Salem, North Carolina upon the Objection by Brokers, Incorporated to Claim Number 16 of Hos-sein Ahmadi d/b/a/ H.B. Auto Sales after due and proper notice. Benjamin Kahn and Paul Daniels appeared on behalf of the Debtor, Brokers, Incorporated (“Brokers”), and Andrew Brown appeared on behalf of the Claimant, Hossein Ahmadi d/b/a H.B. Auto Sales (“HB Auto”). This is a core proceeding under 28 U.S.C. § 157 (b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334 (b) and 157(a). The Court, having presided over the non-jury trial in this case, hereby makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure after careful consideration of the extensive evidence presented by the parties, the credibility of the witnesses, and the pleadings of record.
Procedural History
On November 22, 2004 (the “Petition Date”), Brokers filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. HB Auto was not noticed as a creditor in this proceeding and did not receive notice of the deadline for filing claims. On April 13, 2005, HB Auto filed a proof of claim (the “Claim”) for a debt incurred in or around May 2002 in an unliquidated amount with a copy of a complaint attached. On April 27, 2005, the Court entered a consent order modifying the automatic stay for the limited purpose of permitting HB Auto to file a complaint in state court in order to prevent the running of the applicable statute of limitations and to serve the complaint on Brokers. The parties agreed that Brokers was not required to file an answer or any other responsive pleading in state court and that the matter would be litigated as a claim in the bankruptcy proceeding. The parties consented to this matter being heard by the bankruptcy court.
Accordingly, HB Auto filed the complaint against Brokers on April 29, 2005 in the North Carolina Superior Court, High Point Division, asserting claims for negligent damage to automobiles, negligent damage to business equipment, trespass to personalty, and punitive damages. In response, Brokers filed an objection to the Claim and this Court entered a scheduling order, which was amended numerous times, setting deadlines for various pleadings and discovery. The complaint was amended on July 16, 2007 (the “Complaint”), and a second scheduling order was entered and subsequently amended.
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On December 3, 2007, the Court entered an order denying Brokers’s motion to dismiss HB Auto’s claim for punitive damages. On March 4, 2008, the Court granted Brokers’s motion for partial summary judgment dismissing HB Auto’s claim for negligent damage to business equipment.
Background Facts
Prior to the death of its principal and sole shareholder, Dolan Bowers (“Bowers”), Brokers operated as a real estate holding, management, and development company. Its assets consisted primarily of real estate located in Davidson, Guil-ford, Montgomery and Randolph Counties. Bowers died testate on June 6, 2003. After significant litigation regarding the ownership of the Debtor, Bowers’s heirs entered into a settlement agreement acknowledging that the estate of Bowers is the sole shareholder of the Debtor. On January 27, 2006, the Court confirmed a plan of liquidation pursuant to which all claims have been or will be paid in full. On the Chapter 11 Consummation Report filed on March 25, 2008, Brokers listed total known assets of the Debtor in the amount of $4,497,115.13 and estimated its total known remaining liabilities at $1,020,266.75 (including a reserve in the amount of $424,000.00 for HB Auto’s Claim), leaving a total estimated net value of $3,476,848.38.
HB Auto leased property from Brokers located at 105 South Urban Street in Thomasville, North Carolina (the “Property”) from about 1994 until the fall of 2004, upon which Hossein Ahmadi operated a used car dealership along with his younger brother, Hassan Ahmadi.
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Hassan Ahma-di and Hossein Ahmadi are Iranian immigrants who have been legal residents in the United States for more than 25 years. According to the custom of their country of origin, HB Auto is in the name of Hossein Ahamdi, the older brother; however, the undisputed testimony by both Hossein Ahmadi and Hassan Ahmadi showed that Hassan Ahmadi, the younger brother, is more diligent and more responsible for running the business of HB Auto. The Ahmadis have been in the used car business since 1983, when they started a business in Thomasville, North Carolina on property also leased from Bowers. In 1989, the Ahmadis moved their business to Greensboro but remained in contact with Bowers despite the fact that HB Auto was no longer Bowers’s tenant. Then, sometime in 1993 or 1994, the Ahmadis moved their business onto a portion of the Property owned by Brokers.
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Brokers’s main office was also located on this Property. The parties did not enter into a written lease agreement, and initially, Brokers did not charge HB Auto any rent. After a period of time, HB Auto began to pay Brokers $250 per month in rent. As time went on, HB Auto’s business grew to the point that it had hundreds of vehicles.
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Brokers provided HB Auto with more space on the Property and increased the rent accordingly. By the time HB Auto vacated the Property, it was paying $750 per month in rent.
When the Ahmadis opened HB Auto on the Property in 1994, Hassan Ahmadi had a close relationship with Bowers, both business and personal. Hassan Ahmadi worked on Bowers’s vehicles and also served as his limousine driver at times, and Bowers acted as more than merely a customer or employer to Hassan Ahmadi. For example, Bowers assisted Hassan Ah-madi with obtaining financing for the purchase of his first home in the early 1990’s. Bowers also encouraged Brokers’s employees to purchase vehicles from HB Auto by offering financing for those vehicles; therefore, many of Brokers’s employees became customers of HB Auto. Hassan Ahmadi visited Bowers’s home on numerous occasions and sought out Bowers’s advice on a variety of matters. Hassan Ah-madi described the relationship as one in which he viewed Bowers as a father figure, since his own parents remained in Iran. Hassan Ahmadi’s testimony on this subject was very credible, and Bowers’s own actions in the 1990’s also support this characterization. In contrast, Bowers did not have a close relationship with Hossein Ah-madi. Therefore, Hassan Ahmadi acted as the primary liaison between HB Auto and Brokers.
A Description of the Property
Generally, the Property is in the shape of a triangle, with the bottom side of the triangle running alongside the highway and the two other sides meeting at the point that is the furthest away from the highway. From 1994 to 2004, the Property was utilized by both Brokers and HB Auto. When viewing the Property from the direction of the highway, HB Auto’s office was located in a trailer in the left corner of the Property, along the highway. HB Auto’s main sales lot (the “HB Auto Sales Lot”)
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was located in that same corner of the Property. Brokers’s main office building was located in the middle of this front portion of the Property, to the right of the HB Auto Sales Lot. HB Auto also parked a number of vehicles in the area to the right of Brokers’s main office building, when facing the Property from the highway (the “Overflow Lot”).
Yet another lot, upon which Brokers stored equipment and materials and HB Auto parked cars, was behind the HB Auto Sales Lot (the “Middle Lot”). HB Auto parked junk cars and cars used for parts in an area that was behind both the Overflow Lot and Brokers’s office building (the “Junk Lot”). Several other buildings and trailers belonging to Brokers were scattered behind the Middle Lot and the Junk Lot. In this area, the Property begins to slope downhill (the “Slope”).
All of the lots utilized by HB Auto were on the front half of the Property, before the Slope. When HB Auto initially moved onto the Property, the back third of the Property was generally wooded. A U-shaped fence surrounded the front portion of the Property. The fencing stopped at the wooded portion in the back of the Property. On at least one occasion, this fence had been cut by vandals to gain access to the Property. At some point prior to March 2002, Brokers cleared most of the land in the back of the Property and created another lot by filling in a portion of the area at the bottom of the hill with dirt (the “Lower Lot”). When the Lower
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Lot was created, a type of filter pond was formed at the very bottom of the hill as a result of certain drainage issues. Brokers constructed a bridge which provided access to the Lower Lot from the adjacent property. Since the Lower Lot was located behind several of Brokers’s buildings and trailers and at the bottom of a hill, the Lower Lot was not visible from the HB Auto Sales Lot or HB Auto’s office.
The Business of HB Auto
HB Auto buys vehicles primarily at various automobile auctions in the Greensboro area and repairs and sells vehicles both at auctions and to the public from its place of business. The Ahmadis attend automobile auctions weekly, including the Greensboro Auto Auction, Ray’s Southern Auto Auction, and Mendenhall Auto Auction. Some of the auctions they attend are only open to dealers, while others are open to the public. At these auctions, vehicles are sold within different categories that are assigned by the seller. For instance, “red light” vehicles are those vehicles that are sold without any warranty as to condition. “Damaged and disabled” or “D & D” vehicles are those vehicles that the seller could not start for whatever reason, be it the lack of a key, a dead battery, or a more serious issue. Some vehicles are also sold from a so-called “salvage lane.” A vehicle’s presence in that lane does not necessarily mean that it is a salvage vehicle as defined by the North Carolina Department of Motor Vehicles (the “DMV”)
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. Rather, the salvage lane at the auction is simply a designation assigned by the auction.
HB Auto is able to purchase some vehicles at auctions with its own funds. In addition, it works with a financing company that provides short-term financing by paying for vehicles and keeping the title for a maximum of four months. The financing company holds the title as collateral and charges a $50 fee per vehicle plus interest for this service if the vehicle is sold within 60 days. If the vehicle is not sold, another $50 fee must be paid, as well as the interest and a percentage of the principal. The process repeats if the vehicle is not sold within 90 days. After 120 days, HB Auto must pay the balance and take possession of the title to the vehicle. Consequently, HB Auto generally tries to repair and then sell vehicles financed in this manner within three to four months of purchase. For a period of time, Brokers also provided financing to HB Auto on terms similar to those offered by the outside financing company, but without the four-month limit. At one point, HB Auto owed Brokers in excess of $100,000, and HB Auto repaid that amount in full with interest.
HB Auto retains certain vehicles much longer than three or four months for various reasons. In fact, it owns some vehicles for years before resale. Some vehicles simply do not sell for a variety of reasons, and other vehicles are extensively damaged when purchased and require lengthy repairs. Occasionally, HB Auto purchases 15 or 20 vehicles at once, which creates a backlog of too many vehicles. HB Auto intentionally retains vehicles that
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are of special interest to the Ahmadis. Hossein Ahmadi testified regarding the drawbacks of retaining a vehicle for an extended period of time. He testified that HB Auto tries to start a vehicle’s engine every three or four months as a form of maintenance. Notwithstanding, at minimum, a vehicle’s paint will generally fade if subjected to prolonged exposure.
HB Auto buys a variety of vehicles, including vehicles that have been repossessed, red light vehicles, and D & D vehicles. It also purchases vehicles that are in good condition. It buys damaged vehicles, which the Ahmadis repair and/or refurbish before reselling. As a general practice, HB Auto promptly repairs vehicles that it has purchased if necessary, and every vehicle that is to be resold undergoes a detailed cleaning at an expense of $200. This general practice does not apply to salvage or other more extensively damaged vehicles.
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In addition, HB Auto buys “parts” or “junk” vehicles solely for the parts, which can be used to repair other vehicles. HB Auto has never operated or advertised its business as a junk yard. For the most part, when not at an auto auction, at least one of the Ahmadis is on the HB Auto lot every day, repairing and selling vehicles. HB Auto is also qualified to complete the inspection necessary to obtain a vehicle registration renewal.
Approximately 1% to 2% of HB Auto’s business involves the purchase, repair, and sale of the vehicles with salvage titles. Vehicles with salvage titles up to and including six model years old must be inspected by an inspector from the DMV prior to being repaired.
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This initial inspection is documented on a Report of Initial Examination of Salvage Vehicle. Once a vehicle with a salvage title is repaired, the owner prepares an Affidavit of Rebuilder/Owner, the vehicle is reinspected, and then the inspector prepares a Report of Final Examination of Rebuilt/Reconstructed Vehicle. If the repairs are satisfactory, a clear or unbranded title may be issued for the vehicle. Nevertheless, even if a clear title is issued, the fact that the vehicle had a salvage title must be disclosed to subsequent purchasers.
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Hos-sein Ahmadi testified that once a salvage vehicle is repaired it will continue to have a less than average value.
Roger Beck, the inspector responsible for the 174 dealerships in Davidson County, appeared at the trial and testified that he was familiar with the Ahmadis’ used automobile business and that he was responsible for regulating HB Auto in the early 2000’s. He indicated that HB Auto was toward the low end of used car dealers, in that the craftsmanship was not as detailed as certain other dealers; however,
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he confirmed that HB Auto did not sell parts and was not a junk lot.
Events in Late 2001 through 2002
In the last few years of his life, Bowers’s behavior toward the Ahmadis began to change. He was easily agitated and used racially and ethnically derogatory language when speaking directly to the Ah-madis and when speaking to his employees about the Ahmadis. In late 2001 the Ah-madis’ father, who lived in Iran, was diagnosed with oral cancer. Hassan Ahmadi left the United States for Iran on December 31, 2001. Before leaving, Hassan Ah-madi informed Bowers that his father was ill and that he was leaving the country for a period of time. He returned to the United States with his parents, Mohammad and Zahrazad Ahmadi, on February 26, 2002, intending to obtain medical treatment for his father. For the next several months, both Hassan Ahmadi and Hossein Ahmadi focused on caring for their parents. Mohammad Ahmadi was very ill and received treatment at North Carolina Baptist Hospital in Winston-Salem, and neither their father nor mother spoke English.
During March and April 2002, when Mohammad Ahmadi was in the United States receiving medical treatment, Hassan Ah-madi did not go to the Property to check on HB Auto. Most weeks, Hassan Ahmadi did go to the Greensboro Auto Auction to purchase vehicles for HB Auto, as the auction was located near his house. Vehicles purchased by HB Auto during this time period were not immediately moved to the Property, but were left on the Greensboro Auto Auction’s dealer lot. Contrary to HB Auto’s general practice, these vehicles were not immediately repaired.
Hossein Ahmadi also testified that while his father was receiving treatment, he did not work on the HB Auto lot, and that he went to the Property every two or three weeks, and sometimes less frequently. His father’s medical records reflect that he began treatment on March 21, 2002 and was admitted into the hospital in Winston-Salem on April 11, 2002 for surgery and then remained hospitalized, part of that time in the intensive care unit, until April 22, 2002. The Court finds Hossein Ahma-di’s testimony that he went to the Property even less frequently than every two or three weeks during this time credible, particularly in light of the evidence of his father’s serious medical condition at the time.
On March 15, 2002, Hossein Ahmadi discovered that one of HB Auto’s vehicles, a Chevrolet S-10 truck known in this proceeding as Vehicle # 140, had been vandalized. Hossein Ahmadi called the police and a police report was filed on March 18, 2002. The police report indicates that the date on which the vehicle was last known to be secure by Hossein Ahmadi was 15 days earlier on March 1, 2002. These dates are consistent with the testimony that the Ahmadis were not working at the HB Auto lot on a regular basis during this time period.
At some point in the spring of 2002, after the March 15th vandalism incident, Bowers directed the Brokers’s employees to move a large number of HB Auto’s vehicles from the Middle Lot down the Slope and to the Lower Lot because a few vehicles were blocking access to Brokers’s steel. None of Brokers’s employees could recollect the dates when these vehicles were moved, but all indicated that the vehicles were moved in batches over a period of many weeks. A photo introduced into evidence obtained from Google Earth reflects that Brokers had moved
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many vehicles by March 28, 2002.
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The undisputed testimony from individuals who worked for Brokers at the time is that on repeated occasions, over a period of several months, Bowers appeared in a “bad mood”: cursing, yelling, and referring to the Ahmadis with derogatory language. He then directed Brokers’s employees to move HB Auto’s vehicles to the Lower Lot using forklifts. Bowers directed the employees to act without any regard for damaging the vehicles. In fact, the evidence shows that he directed Broker’s employees in a manner that virtually guaranteed damage. Bowers was present while the vehicles were moved, and he was aware that vehicles were being damaged.
The three Brokers’s employees who were witnesses at trial, Billy Hunt, Chris Leonard, and Harvey Dean Deweese, provided consistent and credible testimony regarding the events in the spring of 2002.
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All of Brokers’s employees who testified indicated that they moved vehicles with a forklift from not only the Middle Lot, but also the HB Auto Sales Lot and the Overflow Lot. Billy Hunt (“Hunt”) worked for Brokers for approximately nine years and had a “good relationship” with Bowers, who had also employed Hunt’s father for 40 years. He was a Brokers’s employee at the time that the vehicles were moved, and he estimated that he was present and involved when approximately 80% of the vehicles were moved. Hunt occasionally worked for HB Auto in the evening when the Ahmadis needed assistance moving vehicles. On a few occasions while helping the Ahmadis, Hunt moved a vehicle with a forklift by stacking wooden blocks under the vehicle to protect it. Otherwise, HB Auto did not move any of its vehicles, other than junk vehicles, with a forklift when the vehicles were located on the Property. The undisputed testimony is that when HB Auto’s vehicles were moved by Brokers, wooden blocks were not utilized.
Hunt testified that Brokers had never moved HB Auto vehicles to the Lower Lot before the incident in question. He estimated that the first time the employees moved a batch of vehicles, Bowers appeared in a bad mood and told the employees to move vehicles to the Lower Lot. Hunt estimated that, initially, Bowers directed Brokers’s employees to move about 100 vehicles; however, Hunt never counted the cars that he moved. At Bowers’s direction, Hunt moved many more vehicles over a period of “several weeks,” approximately 150 to 200 vehicles, moving them primarily from the Middle Lot, but also from the Overflow Lot and the HB Auto
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Sales Lot. All of the vehicles he moved were “good cars,” some being nicer than average and some being less nice than average. He did not move any junk vehicles or vehicles from the Junk Lot. As directed by Bowers, he moved vehicles by lifting the vehicles with a forklift. As he slid the forks under the vehicles, Hunt could hear noises that he believed suggested damage. He described seeing bent drive shafts on vehicles after he moved them. He damaged vehicles when sliding the forks under a vehicle, and those forks would poke into the adjacent vehicle. He testified that Bowers did not appear to care if vehicles were damaged. Bowers instructed him and others to “stack” the vehicles in the Lower Lot; however, Hunt’s father, also an employee, stopped the employees from doing so. Employees used earth moving equipment to push vehicles closer together. Also, several of Brokers’s forklifts had inoperable or malfunctioning brakes. Knowing this, Bowers instructed the employees to use the vehicle on the forklift as a brake if necessary. This was done by dropping the vehicle such that the forklift would then run into the vehicle and thus, stop.
Chris Leonard (“Leonard”) worked for Brokers for about a year and a half, including part of the time that HB Auto’s vehicles were moved. He also moved vehicles at Bowers’s instruction from the Middle Lot, the Overflow Lot, and the HB Auto Sales Lot to the Lower Lot in the spring of 2002. He testified that he also moved some junk cars, but could not recollect how many. The first time Bowers told Leonard to move vehicles, he instructed Leonard to stack the vehicles in the Lower Lot. Leonard testified that he moved cars, and he damaged cars. He described that when he went down the Slope, he had to tilt the fork back to keep the vehicle on the forks. If the vehicle slid back, it would hit the frame of the forklift and the doors would be damaged. Some vehicles were damaged by hitting larger equipment on the Slope. Leonard dropped one vehicle and saw another employee, Harvey Dean Deweese, drop more than one vehicle. Leonard described one instance when the forklift kicked out of gear while he was going down the Slope: he dropped the vehicle so that he could use it as a break to stop the forklift; the vehicle then flipped, and he picked it back up with the forklift, upside down; after that, he described that the vehicle looked “torn up,” as if it had been in a wreck. Leonard put vehicles in the Lower Lot bumper to bumper and side by side. He also squeezed vehicles between trailers on the Slope, as instructed by Bowers. In general, the vehicles were in good condition before Leonard moved them.
Harvey Dean Deweese (“Deweese”) worked for Brokers for 16 years. He moved approximately 30 to 50 of HB Auto’s vehicles to the Lower Lot with a forklift at Bowers’s instruction, despite his own protests. All of the vehicles moved by Deweese were “good cars.” He did not move any vehicles out of the Junk Lot. He moved what he described as “nice cars”: cars he would have purchased. He described that on more than one occasion, Bowers came into work cursing and yelling and in this state, he would instruct Dew-eese to move vehicles to the Lower Lot using a forklift. As Deweese moved the vehicles down the Slope, he too described that he had to tilt the forks back so far that the vehicle on the forklift would slide and hit the cage. He saw fork marks on vehicles moved. He also had difficulty with the absence of operating breaks on the forklift and with the forklift slipping out of gear, in which case he described that then “you just went for a ride.” He described that some vehicles fell off the forks, and then those vehicles were hit by
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the forklift because there was no other way to stop. He testified that some of the employees who moved vehicles were not careful and did not care about damaging the vehicles.
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After the vehicles had been moved to the Lower Lot, many of the vehicles sustained further damage due to vandalism, erosion, and flooding. Brokers’s employees testified that where the Lower Lot had been partially leveled with dirt that had been hauled in, rain washed the soil away from under and around the vehicles. Vehicles would then fall into the gully or ditch that was created by the erosion or into the drainage pond that had been built when the Lower Lot was created. Some of those vehicles were then moved again with forklifts to get them out of the ditch or hole into which they had sunk, or for other reasons. Additionally, within weeks after the first vehicles were moved to the Lower Lot, vandals and thieves came to the Lower Lot and damaged vehicles by breaking windows and stealing parts off the vehicles. Brokers’s employees testified that Bowers was aware that vandalism was occurring. Eventually, after Bowers’s truck was stolen, Brokers erected concrete barriers at the bridge that connected the Lower Lot to the adjacent property to provide protection.
On May 3, 2002, Hossein Ahmadi went to the Property after an extended absence. Upon arriving at the Property on May 3rd, Hossein Ahmadi discovered that numerous vehicles were missing from the Middle Lot and the HB Auto Lot. Upon making this discovery, his first reaction was to call his brother. Hossein Ahmadi immediately left the Property, because, as he described, he was going to have a “heart attack” when he did not see his cars. Hassan Ahmadi then arrived at the Property, located the missing vehicles on the Lower Lot, and found that some vehicles were damaged. Hunt was present both when Hossein Ah-madi discovered that vehicles were missing and when Hassan Ahmadi arrived at the Property. Hunt walked down to the Lower Lot with Hassan Ahmadi. Hunt testified that Hossein Ahmadi appeared very surprised when he discovered that vehicles were missing and that Hassan Ahmadi appeared surprised when he saw the vehicles in the Lower Lot. Hunt testified that on the same day the Ahmadis discovered the damaged vehicles, the police were called and the sheriff came. By that point, at least one of the vehicles that had been moved to the Lower Lot had already been vandalized.
Hassan Ahmadi called the police and a report was filed regarding the damage caused by vandals. He also spoke to Bowers about the damages caused by Brokers. Bowers informed him that the vehicles were moved because the Ahmadis did not come to work anymore. In response to the damages, Bowers told Hassan Ahmadi to leave the vehicles alone and that he would take care of it. Hassan Ahmadi testified that based upon his long-standing
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relationship with Bowers, he trusted this representation and left the majority of the vehicles as they were, in the Lower Lot. The Ahamdis did retrieve a small number of vehicles that were not damaged or had only minor damage and could be easily repaired, as well as the vehicles used for parts. The Ahamdis testified that they did not remove parts from any of the vehicles that remained in the Lower Lot. Within in a few weeks after May 3, 2002, when the Ahmadis had returned to work on a more regular basis, Bowers told the Ahmadis that HB Auto could bring more vehicles onto the Property. HB Auto resumed purchasing vehicles, bringing them to the Property, and repairing them. HB Auto continued to pay monthly rent.
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On a few more occasions in the following months when the Ahmadis were not present on the Property, Brokers again moved HB Auto’s vehicles to the Lower Lot with forklifts. Hunt testified that additional vehicles were moved months after the Ah-madis returned to work. Hossein Ahmadi described that he and his brother would bring a vehicle to the Property, and that two or three weeks later “when we wouldn’t go to work, he would do that thing to — to the cars.” On one of those occasions, Hassan Ahamdi arrived, and Bowers refused to stop his employees from moving the vehicles. Furthermore, Hos-sein Ahmadi was there on one of the last occasions that Brokers moved vehicles to the Lower Lot. Hossein Ahmadi began to move vehicles to the Overflow Lot to get them out of the way, but the process was slow because some of the vehicles needed to be jumped to get them started. Meanwhile, Bowers continued to direct Brokers’s employees to move vehicles to the Lower Lot with forklifts.
Bowers reassured the Ahmadis on more than one occasion that he would compensate HB Auto and told the Ahmadis to leave the vehicles as they were in the Lower Lot. HB Auto ultimately ceased bringing any additional vehicles to the Property and relocated the business. Hunt testified that there were not any more vehicles moved by Brokers’s employees once the vehicles were “all down there” and “they quit bringing vehicles in.”
In August of 2002, Hossein Ahmadi purchased land onto which HB Auto could relocate. HB Auto moved in October 2002 but continued to pay $750 per month in rent to Brokers because of the vehicles left behind in the Lower Lot. HB Auto did not attempt to move the vehicles out of the Lower Lot but simply left the vehicles as they had been placed by Brokers’s employees. Hassan Ahmadi testified that HB Auto did not put plastic tarps over the vehicles because there were simply too many vehicles to do so. Neither he nor his brother made a list of the vehicles or damages until after Bowers’s death. At that point, they took photos of the vehicles and prepared a spreadsheet (which was admitted as “Defendant’s Exhibit 2”) listing the make, model, vehicle identification number (“VIN”), mileage, date of purchase, and a value before and after the incident. Eventually, HB Auto moved the vehicles, using a rollback, to its current place of business.
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The current President of Brokers, Mark Preston (“Preston”), has been an officer of Brokers since January of 2004. He also serves as the co-executor of the Estate of Dolan Bowers, and he is a licensed CPA. On January 21, 2005, this court entered an order authorizing Preston’s employment by Brokers as in independent contractor consultant to be paid at a rate of $150 per hour. During his tenure at Brokers, Preston has overseen the liquidation of the corporation, the payment of creditors, and the resolution of certain environmental remediation activities. Preston signed Brokers’s bankruptcy petition and the disclosure statement, as well as other documents filed in this case. As the assets of Brokers are not fully liquidated, Brokers has engaged a management company to manage rental property. No further business development activities have been undertaken. Preston has attended each of Brokers’s quarterly board meetings while he has been an officer and director of the company. In his testimony at trial, Preston could not recall if he was aware that the vehicles were on the Lower Lot at the time he took over as President and indicated that he simply did not pay attention to vehicles on the Property. Preston testified that neither the subject of HB Auto’s vehicles nor HB Auto’s Claim against Brokers had ever been discussed at a board meeting despite the fact that the amount of HB Auto’s claim was estimated at $400,000.
Expert Testimony
At trial, HB Auto presented the testimony of Newland Spears (“Spears”), who was qualified as an expert in valuation of used vehicles. Spears runs a paint and body shop. His specialty is buying wrecked vehicles, repairing, and then reselling these vehicles. He testified that he was very familiar with frame damage in general and frame damage caused by a forklift in particular, and that a forklift leaves a distinct track underneath a vehicle, including possible damage to the pinch weld clamp, rocker panels, drive shaft, floor boards, exhaust system, fuel tank and lines, and on the side of the vehicle. Spears testified that it was not possible to pick up a vehicle with a forklift and not cause some type of damage. He conceded that an exception to this general statement would be if some type of bracing was utilized, such as wood blocks. When Spears examined HB Auto’s vehicles, he did not have any knowledge of the specific events that occurred in 2002.
Spears examined each vehicle individually for forklift damage and to determine the general condition of the vehicle. He jacked each vehicle up to examine underneath each vehicle and dictated notes to his wife as he was working.
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These notes on each vehicle are contained in his expert report and were entered into evidence. While examining HB Auto’s vehicles, Spears saw numerous vehicles that had' been moved with a forklift more than once as evidenced by the existence of more than
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one set of forklift tracks. This damage was particularly evident on vehicles that had forklift marks on both sides of the vehicle, indicating that the vehicle had been picked up from two different directions.
Spears examined the vehicles operating under the basic assumption that the vehicles were ready for sale prior to being damaged. He examined the overall condition and “look” of each vehicle including body structure, carpet wear, seat wear, and audio systems. He, along with the assistance of his wife and one of his employees, spent approximately 41 hours in the field examining the vehicles. He recorded damage from a forklift, damage from deterioration, and missing parts. He found only one vehicle that did not have damage from a forklift,. Numerous vehicles had incurred frame damage. Almost all the vehicles had incurred damage to a rocker panel and floor board. Spears indicated that the cost of a rocker panel ranges from $250 to $750. He testified that he regularly wrote estimates for repairs to rocker panels, and he repairs rocker panels regularly at a cost of as much as $3,900. He testified that damage to a rocker panel will have a drastic impact on the value of a vehicle because, even after repaired, it must be disclosed upon sale as frame damage. The Court finds that Spears’s testimony regarding forklift damage on the vehicles and repair costs was credible and competent and that the notes in his expert report establish an accurate record of the damage sustained by each vehicle.
As part of his expert report, Spears calculated estimated values for each vehicle immediately after the forklift damage was incurred. He calculated these values based upon forklift damage. Spears also included an estimate of each vehicle’s value as of the date of his inspection, approximately August 1, 2007. This estimate takes into account subsequent deterioration. He estimated that the vehicles have current total value of $24,625. All of his estimated values are based upon his own experience and expertise; he did not use NADA values.
Spears also testified regarding his familiarity with auto auctions. He is familiar with the Greensboro Auto Auction and testified that it is a fairly competitive auction, but at times it is possible to buy a car for $50 that is worth $5,000. In his opinion there is no relationship between the purchase price of a vehicle at an auction and the value of the vehicle.
Spears testified that the condition of a vehicle will deteriorate if it remains parked for years at a time. As an individual in the used car business, Spears testified that it was common practice to perform some type of maintenance of vehicles that are sitting for an extended period of time, such as occasionally running the engine and driving the vehicle intermittently so that the tires were not always in the same position. Covering a vehicle with a tarp is also a common practice used to provide protection from the elements. He testified that if a vehicle has a flood history or salvage history, that history will reduce its value.
Brokers presented the testimony of Glenn Edward Twigg (“Twigg”), who was qualified as an expert in vehicle appraisal and vehicle damage. On his initial inspection of the vehicles, Twigg spent approximately three hours to examine the 235 vehicles (mathematically, this equates to approximately 45 seconds per vehicle). He did not initially look underneath any of the vehicles. Twigg then prepared his expert report, listing his opinion of the condition of each of the vehicles that he inspected. The report contains no opinion as to vehicle value. Twigg explained that
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he did not examine underneath any of the vehicles because “underside damage didn’t mean that much to me at that time.” Twigg was deposed by counsel for HB Auto after his initial inspection of the vehicles. At the conclusion of this deposition, Twigg decided to return to the location of the vehicles and examine the underside of a few randomly chosen vehicles. Twigg did not add any notes from his second inspection to his expert report but testified regarding his additional findings at trial.
13
Twigg’s expert report is difficult to understand, and numerous entries and notations are confusing. Twigg testified that his intention was to make the notation “NFLD” in his report if he found no forklift damage. The notation “no damage” was intended to imply that the vehicle had no damage separate and apart from forklift damage. If Twigg listed some type of damage but did not indicate NFLD, then he intended to imply that the damage was indeed forklift damage. The forklift damage that he did see during his initial inspection was primarily in the form of bent doors, and Twigg testified that generally a forklift would damage a vehicle with lines that ran “up and down.”
Twigg testified that some of the vehicles had collision damage that he believed was unrelated to being moved with a forklift unless somebody “got wild” on a forklift.
14
Other vehicles were missing parts, such as airbags, audio components, lamps, and bumpers. A number of vehicles appeared as though they had fallen into a ditch or had been involved in a rear end collision. In his opinion, a vehicle could be moved with a forklift and not sustain frame damage because a forklift would not hit the rocker panel unless the forks slid too far under the vehicle.
15
The Court will give little weight to Twigg’s testimony regarding the condition of individual vehicles, as he spent on average less than one minute examining each vehicle.
16
In fact, Twigg testified that it was hot on the day he examined the vehicles and he was in a hurry to “get back on the road.”
17
Also, because Twigg did not initially examine underneath any of the vehicles, Twigg’s opinion as stated in his report regarding whether a vehicle has forklift damage car
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ries almost no weight.
18
Twigg himself testified that since he did not examine the underside of the vehicles, Spears is in a better position to make a judgment of how much damage the underside sustained. Lastly, the Court notes that Twigg appeared less knowledgeable than Spears about forklift damage in general.
Twigg was not familiar with any of the auto auctions that the Ahmadis regularly attended. In his opinion, there is a relationship between the purchase price of a vehicle and its value in that the purchase price indicates something about the value; though, he conceded that when he was appraising an automobile, purchase price was not generally a factor.
Regarding general values of used automobiles, Twigg testified that the most accurate value of an average, used car is the N.A.D.A. Guide (“NADA”) value or Kelly Blue Book value, but that not all cars have a book value and one has to consider the overall condition. He testified that the industry standard value of a flood or salvage vehicle is 30% to 40% (or an average of 35%) less than the NADA retail, the standard value of a vehicle that had been 25% damaged and repaired is generally 10% less than NADA retail but could reach up to 20% less on newer models, and the standard value of a vehicle that had frame damage or unibody damage but had been properly repaired is 10% less than NADA retail. Twigg further testified that the fact that a vehicle has been repossessed in the past, sold in a “salvage line,” or as a “red light” does not affect the value of the vehicle. He stated that a vehicle that sits for a number of years will deteriorate, and while starting the engine occasionally would prevent some damage, the tires will dry-rot if left in the same position. The Court finds that Twigg’s testimony regarding the valuation of used automobiles and NADA values generally competent and credible.
Twigg agreed with much of Spears’s testimony, but he did not feel that he could determine what damage took place before the move, during the move, or after the move without evidence of the condition prior to the incident. Twigg disagreed with Spears regarding whether some of the exterior damage, particularly on the doors, was caused by a forklift. In addition, he generally did not agree with Spears’s values for the vehicles immediately following the incident. Twigg did not agree with Spears’s deductions for frame damage, though he was not familiar with the cost to repair a rocker panel and could not recall the last time he had written an estimate for rocker panel repair. Twigg testified that in his opinion, it is less costly to repair floorboard damage than damage to the rocker panel or frame rail.
Both Twigg and Spears provided testimony regarding specific, individual vehicles. Evidence regarding each individual vehicle will be addressed below, in conjunction with the Court’s analysis of damages.
Statute of Limitations
Brokers contends that HB Auto is not entitled to recover damages for injuries which arose before April 29, 2002, the date three years prior to the date that the Complaint was filed. The Court disagrees for several reasons. North Car
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olina Gen.Stat. § 1-52 imposes a three-year statute of limitations for negligent damage to personal property actions. A negligence action accrues at the time the plaintiff discovers, or reasonably should have discovered, the injury or damage, as long as it is within ten years of the defendant’s negligence. N.C. Gen.Stat. § 1-52(16). If the relevant facts are not admitted and in conflict, then whether a cause of action is barred by the statute of limitations is a mixed question of law and fact.
Lord v. Customized Consulting Specialty, Inc.,
182 N.C.App. 685 , 643, 643 S.E.2d 28, 33 (2007) (citing
Jack H. Winslow Farms, Inc. v. Dedmon,
171 N.C.App. 754, 756 , 615 S.E.2d 41, 43 (2005)).
In the instant case, HB Auto filed its negligence action within three years of its discovery of the property damage. Brokers began to move vehicles sometime after March 18, 2002. The undisputed testimony is that these actions commenced when the Ahamdis were not present. The Ahmadis became aware of the damage on May 3, 2002 when Hassan Ahmadi came to the Property and noticed that vehicles were missing. The evidence shows that the police were notified on the same date that the damage was discovered and the police report is clearly dated May 3, 2002.
Furthermore, the Court cannot conclude that HB Auto reasonably should have discovered the damages or negligence prior to May 3, 2002. Brokers moved and damaged the majority of the vehicles at a time when the Ahmadis were essentially taking a leave of absence from the business to care for their ailing father and visiting mother. Hassan Ahmadi did not go to the Property for a period of several months, and Hossein Ahmadi went only intermittently. Just ten days after his father was discharged from the hospital, Hossein Ahamdi returned to the Property and discovered the damage. Even if Hossein Ah-madi did stop by the office on the Property sometime in late March or April, the Court cannot find that the damage should have reasonably been discovered. The Ahmadis had hundreds of vehicles, and the damaged vehicles were moved to a location that was not utilized by HB Auto and that was not visible from the HB Auto Sales Lot or HB Auto’s office. As a result, HB Auto is entitled to the protection of the discovery rule in N.C. Gen.Stat. § 1-52(16). By filing the Complaint within three years of discovering the property damage, HB Auto is not barred by the statute of limitations from seeking damages for injuries sustained when Brokers moved the vehicles in March and April 2002.
Furthermore, even if the Court were to find that the damage should have been discovered in early April 2002, the Bankruptcy Code provides additional time for a stayed creditor to commence a civil action against a debtor. Section 108(c) of the Bankruptcy Code provides that if a limitations period for commencing a civil action has not expired before the petition date, then such period does not expire until 30 days after receiving notice of the termination of the automatic stay under § 362. 11 U.S.C. § 108 (c).
19
While § 108(c) does not independently stop the limitations period from running while the stay is pending unless expressly provided for by applicable non-bankruptcy law, it extends such deadline for 30 days after
*719
notice of the termination of the stay with respect to the claim at issue.
See, e.g., In re WorldCom, Inc.,
362 B.R. 96, 109-10 (Bankr.S.D.N.Y.2007);
In re Meredith,
337 B.R. 574, 576 (Bankr.E.D.Va.2005);
In re Pagnotti,
269 B.R. 326, 335 (Bankr. M.D.Pa.2001). In the present case, Brokers filed its bankruptcy petition on November 22, 2004. The stay was lifted as to HB Auto on April 27, 2005 and the Complaint was filed well within 30 days of that date, on April 29, 2005. HB Auto’s claim against Brokers did not arise until 2002; therefore, the three-year statute of limitations had certainly not expired before the Petition Date.
20
Trespass to Chattel
HB Auto has asserted claims for both negligence and trespass. The basis of a trespass to chattel cause of action lies in the “injury to possession.”
Motley v. Thompson,
259 N.C. 612, 618 , 131 S.E.2d 447, 452 (1963). A claim for trespass to chattel requires a showing that: (1) the plaintiff had actual or constructive possession of the chattel in question; and (2) there was an unauthorized interference or dispossession of that chattel.
Fordham v. Eason,
351 N.C. 151, 155 , 521 S.E.2d 701, 704 (1999).
The first element of a trespass to chattel claim is easily satisfied in this instance. HB Auto had possession of the chattel in question: the vehicles. The vehicles were parked on various HB Auto lots on the Property, including the HB Auto Sales Lot, the Middle Lot, and the Overflow Lot. HB Auto also had possession of the keys to each of those vehicles. As to the second element, it is undisputed that Brokers removed the vehicles from their locations on HB Auto’s lots to the Lower Lot. It is undisputed that the Lower Lot was located on a portion of the Property that was not rented or utilized by HB Auto and was utilized only by Brokers. Additionally, based upon the evidence presented, the Court finds that Brokers’s interference and dispossession of HB Auto’s vehicles were not authorized by HB Auto. As a result, Brokers is liable to HB Auto for its trespass to chattel, and HB Auto is entitled to a judgment for damages resulting from that trespass. The issue of damages will be addressed separately.
Negligent Damage to Personal Property
To establish a claim for negligence, a plaintiff must demonstrate the existence of four essential elements: duty, breach of duty, proximate cause, and damages.
See, e.g., Stein v. Asheville City Bd. of Ed.,
360 N.C. 321, 328 , 626 S.E.2d 263, 267-68 (2006);
Estate of Mullís v. Monroe Oil Co.,
349 N.C. 196, 202 , 505 S.E.2d 131, 135 (1998). A duty arises under “the basic rule of the common law which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to endanger the person or property of others.”
Collingwood v. Gen. Elec. Real Es
*720
tate Equities, Inc.,
324 N.C. 63, 68 , 376 S.E.2d 425, 428 (1989) (quoting
Pinnix v. Toomey,
242 N.C. 358, 362 , 87 S.E.2d 893, 897 (1955)).
See also Stein,
360 N.C. at 328 , 626 S.E.2d at 267 (“No legal duty exists unless the injury to the plaintiff was foreseeable and avoidable through due care.”);
Estate of Mullis,
349 N.C. at 204 , 505 S.E.2d at 137 (“A legal duty is owed whenever one person is by circumstances placed in such a position [towards] another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other.”) (internal quotations and citations omitted). A breach of that duty occurs when a person fails to conform to the standard of due care required.
Thornton v. F.J. Cherry Hosp.,
183 N.C.App. 177, 186 , 644 S.E.2d 369, 376 (2007) (citing
Davis v. N.C. Dept. of Human Res.,
121 N.C.App. 105, 112 , 465 S.E.2d 2, 6 (1995)).
HB Auto’s evidence establishes that Brokers owed a duty to HB Auto and that Brokers breached this duty. For whatever reason, but without permission to do so, Brokers undertook to move HB Auto’s property, and when doing so, it owed HB Auto the duty to conduct itself with ordinary care. There is ample evidence that Brokers did not use ordinary care when it moved HB Auto’s vehicles to the Lower Lot. Hunt, Leonard, and Dew-eese all testified that they moved the vehicles with forklifts, and they did not use wooden blocks or any other means to protect the vehicles from the forks. Furthermore, they transported the vehicles down a hill on forklifts with defective brakes. The vehicles were placed bumper to bumper in the Lower Lot next to the drainage pond. Brokers did not use ordinary care or skill when it moved the vehicles, and Brokers should have recognized that HB Auto’s property would be injured by its conduct.
21
In fact, the evidence reflects that it was plainly apparent that HB Auto’s property was being injured while the conduct was ongoing. Brokers’s employees saw, heard, and caused damage while they were moving vehicles, and yet, they moved additional vehicles in the same fashion. In sum, Brokers moved the vehicles in a negligent fashion and is liable for the damages caused by that negligence.
See Daniels ex rel. Webb v. Reel,
133 N.C.App. 1, 9 , 515 S.E.2d 22, 27 (1999) (“At its most basic level, liability for negligence is premised on the fact that a party is performing a particular undertaking in a negligent fashion.”).
While HB Auto has presented evidence that establishes Brokers’s negligence, it must also show that Brokers’s negligence was the proximate cause of the injury. Proximate cause has been described as:
[A] cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.
*721
Hairston v. Alexander Tank & Equipment Co.,
310 N.C. 227, 233 , 311 S.E.2d 559, 565 (1984) (citations omitted). Foreseeability is an element of proximate cause, though the plaintiff need not prove that the defendant should have foreseen the exact injury that occurred.
Id.
at 233-34 , 311 S.E.2d at 565 . For the purposes of proximate cause, foreseeability includes those events that were reasonably foreseeable, but does not extend to those events that were simply “possible.”
Id.
at 234 , 311 S.E.2d at 565 .
See, e.g., Williamson v. Liptzin,
141 N.C.App. 1, 10-19 , 539 S.E.2d 313, 319-24 (2000) (holding that plaintiffs dangerousness was not foreseeable; therefore, defendant’s negligence was not the proximate cause of plaintiffs injuries). Other factors to consider when making a determination as to proximate cause include: (1) whether it appears that the cause, when using usual judgment, was likely to produce the result; (2) whether the relationship between cause and effect is too attenuated; (3) whether there is a direct connection without intervening causes; (4) whether the cause was a substantial factor in bringing the result; and (5) whether there was a natural and continuous sequence between cause and effect.
Williamson v. Liptzin,
141 N.C.App. at 11 , 539 S.E.2d at 319 -20 (citing
Wyatt v. Gilmore,
57 N.C.App. 57, 59 , 290 S.E.2d 790, 791 (1982)).
HB Auto contends that Brokers’s negligence caused injury to its property including: (1) damage caused directly by moving vehicles with a forklift; (2) other damage, such as collision type damage, incurred during the process of moving the vehicles; (3) damage caused by deterioration of the vehicles due to exposure, including water damage; and (4) damage caused by vandals. First, the Court finds that Brokers’s negligence was the proximate cause of the damage to HB Auto’s vehicles caused directly by forklifts. Clearly, it was foreseeable, using ordinary judgment, that the vehicles would be gouged, scraped, and dented. In addition, it was also foreseeable that other damage would be incurred during the process of moving vehicles down a hill on forklifts with inoperable brakes. In fact, the evidence clearly shows that Bowers, who directed Brokers’s employees to use the forklifts, was aware of the problems with the brakes and instructed employees to use the vehicles as brakes. Certainly, Brokers’s negligence was the proximate cause of the collision type damage incurred while moving the vehicles.
Brokers contends that even if it moved HB Auto’s vehicles in a negligent manner, it is not responsible for the subsequent damages caused by deterioration, flooding, and vandalism because such damages were not proximately caused by Brokers. Many of the vehicles sustained damage because portions of the Lower Lot eroded and flooded. Some vehicles were washed into ditches and others were flooded. The evidence clearly shows that the Lower Lot is situated at the bottom of a hill. Brokers was aware of drainage issues when it built the Lower Lot, as evidenced by the fact that a drainage pond was built. The Court finds that when Brokers placed the vehicles at the bottom of a hill next to its drainage pond, the flooding was foreseeable. In addition, a certain amount of deterioration was foreseeable. Brokers packed hundreds of vehicles together bumper to bumper and side to side in a remote and relatively difficult to access portion of the Property. Clearly, it should have been foreseeable that the Ahmadis would not be able to quickly and easily retrieve the vehicles or maintain these vehicles, such as by driving them occasionally, once they were deposited in the Lower Lot. Though the Court finds that deterioration was foreseeable, HB Auto did have a duty to mitigate damages,
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which the Court will address in conjunction with the calculation of damages.
In contrast, damage caused by criminal acts was not foreseeable. In North Carolina, as a general rule, “the intervening or superseding criminal acts of another preclude liability of the initial negligent actor when the injury is caused by the criminal acts.”
Tise v. Yates Constr. Co.,
345 N.C. 456, 460 , 480 S.E.2d 677, 680 (1997). This rule stems from the concept of foreseeability: intentional, criminal acts of third parties generally cannot be reasonably foreseen by the negligent actor.
Al-Hourani v. Ashley,
126 N.C.App. 519, 521-23 , 485 S.E.2d 887, 889-90 (1997) (finding that defendant’s negligence in allowing third parties to carry gasoline away from the defendant’s premises in unapproved containers, but then using it to burn plaintiffs brother was a reasonably unforeseeable intervening and insulating action). Nevertheless, if there is evidence that the criminal acts that occurred were reasonably foreseeable, the negligent actor may be held liable.
Connelly v. Family Inns of America, Inc.,
141 N.C.App. 583, 588 , 540 S.E.2d 38, 41 (2000). “The most probative evidence on the question of whether a criminal act was foreseeable is evidence of prior criminal activity committed.”
Id.
(citing
Sawyer v. Carter,
71 N.C.App. 556, 558 , 322 S.E.2d 813, 815 (1984)). Specifically, courts consider the location, type, number, and frequency of criminal incidents prior to the negligent act.
Id. See, e.g., Murrow v. Daniels,
321 N.C. 494, 502 , 364 S.E.2d 392, 398 (1988) (“finding that evidence of 100 incidents of criminal activity in five years at intersection where defendant’s motel was located was sufficient to raise the issue of fact concerning the question of foreseeability”);
Foster v. Winston-Salem Joint Venture,
303 N.C. 636, 642 , 281 S.E.2d 36, 40 (1981) (holding that the court could not conclude that the criminal act was unforeseeable as a matter of law when presented with evidence of 31 total prior criminal incidents and four or five that were of a similar type);
Liller v. Quick Stop Food Mart, Inc.,
131 N.C.App. 619, 623 , 507 S.E.2d 602, 605 (1998) (considering the type of prior criminal incidents and finding that six violent incidents over a three-year span were sufficient to raise an issue as to whether further violent crime was foreseeable);
Sawyer v. Carter,
71 N.C.App. at 562 , 322 S.E.2d at 817 (evidence of single robbery of convenience store five years earlier, coupled with evidence of occasional robberies of other convenience stores and businesses at unspecified locations over extended period of time, insufficient evidence of foreseeability and duty to survive defendant’s summary judgment motion);
Brown v. N.C. Wesleyan College, Inc.,
65 N.C.App. 579, 583 , 309 S.E.2d 701, 703 (1983) (“Based upon this forecast of evidence, we conclude that the scattered incidents of crime through a period beginning in 1959 were not sufficient to raise a triable issue as to whether the abduction and subsequent murder of plaintiffs intestate was reasonably foreseeable.”).
In this case, HB Auto presented little evidence of criminal incidents prior to the time that the vehicles were moved to the Lower Lot. On at least one occasion, the fence had been cut by vandals to gain access to vehicles parked in the Property and there was also an incident on March 15, 2002 when a Chevrolet S-10, Vehicle # 140, was vandalized. Once the vehicles were moved, however, the evidence reflects that criminal activity began almost immediately. Based upon the evidence presented, the Court cannot find that these activities were foreseeable. These criminal acts were intervening causes and Brokers is not liable for damages caused thereby.
*723
Contributory Negligence
Brokers contends that HB Auto should be barred from recovering any damages incurred after the vehicles were discovered in the Lower Lot because HB Auto was contributorily negligent by leaving the vehicles there. “Contributory negligence is the breach of duty of a plaintiff to exercise due care for his or her own safety, such that the plaintiffs failure to exercise due care is a proximate cause of his or her injury.”
Thompson v. Bradley,
142 N.C.App. 636, 640 , 544 S.E.2d 258, 261 (2001). In North Carolina, a finding of contributory negligence results in a complete bar to a negligence claim.
Cobo v. Raba,
347 N.C. 541, 545 , 495 S.E.2d 362, 365 (1998). When a defendant’s negligence is gross negligence, however, a plaintiffs ordinary negligence does not bar recovery.
Yancey v. Lea,
354 N.C. 48, 51 , 550 S.E.2d 155, 157 (2001). Gross negligence includes willful or wanton conduct done with a reckless disregard for the rights or safety of other people or property.
Id.
at 52 , 550 S.E.2d at 157 . Conduct is wanton when it is done with a wicked purpose or done needlessly. An act is willful “when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason.”
Id.
Thus, an act or conduct rises from ordinary negligence to gross negligence when it is done with a certain level of knowledge or consciousness.
Id.
at 53 , 550 S.E.2d at 158 .
See also Clayton v. Branson,
170 N.C.App. 438, 445-46 , 613 S.E.2d 259, 265-66 (2005) (finding no gross negligence where defendant drove 30 to 35 miles above the legal speed limit even though defendant was aware that plaintiff was not wearing a seatbelt);
Sawyer v. Food Lion, Inc.,
144 N.C.App. 398, 403 , 549 S.E.2d 867, 870-71 (2001) (holding that defendant’s failure to cover floor holes was not willful, wanton, or with a deliberate or wicked purpose);
Wilburn v. Honeycutt,
135 N.C.App. 373, 376 , 519 S.E.2d 774, 776 (1999) (holding that evidence tending to show that defendant driving on a long, straight road with no obstructions and that defendant saw plaintiff and plaintiffs horse and either intentionally of with reckless indifference willfully ran into them and drove on without stopping was sufficient to preclude defendant’s motion for direct verdict on the issue of willful and wanton conduct).
Here, Brokers’s conduct was both willful and wanton. The evidence paints a picture of Brokers’s reckless disregard for HB Auto’s property and a wicked purpose. The employees were instructed to move the vehicles with forklifts, without any wood blocks or other bracing. Because the forklifts had faulty brakes, the employees were instructed to use the vehicles themselves as brakes, dropping the vehicle such that the forklift would hit the vehicle and stop. Though they did not do so, Brokers’s employees were instructed to stack vehicles on top of one another. Earth moving equipment was used to push the vehicles. All of the employees described that when instructing the employees to move the vehicles, Bowers appeared angry or in a “bad mood” and would refer to the Ahmadis with racial and ethnic slurs. After carefully considering the evidence, the Court finds that Brokers’s actions were taken with a conscious disregard for HB Auto’s property and constitute gross negligence.
Brokers contends that even if its conduct constitutes gross negligence, HB Auto also acted in a manner that constitutes gross negligence by continuing to place vehicles on the Property after it discovered that Brokers had moved vehicles with a forklift to the Lower Lot and by failing to take action to prevent criminal acts and deterioration of the vehicles in
*724
the Lower Lot. Despite a finding of gross negligence on behalf of a defendant, a plaintiffs claim is barred if the plaintiffs own actions rise to the same level of negligence as the defendant’s.
Coleman v. Hines,
133 N.C.App. 147, 150 , 515 S.E.2d 57, 60 (1999). Even if this Court were to make a finding that HB Auto was negligent in failing to remove the vehicles from the Lower Lot to prevent vandalism and deterioration, or if the Court found that HB Auto was negligent when it continued to bring vehicles to the Property even after it discovered that Brokers had moved vehicles to the Lower Lot, HB Auto’s negligence would not rise to the level of Brokers’s gross negligence. It is not disputed that HB Auto leased portions of the premises including the HB Auto Sales Lot, the Middle Lot, the Overflow Lot, and the Junk Lot. Brokers had taken vehicles from numerous different lots, not just one location. HB Auto was paying Brokers its monthly rent, and it had not been evicted, nor had eviction proceedings been commenced. The fact that HB Auto continued to utilize areas of the Property that it leased from Brokers after it discovered that Brokers had moved some of its vehicles does not constitute willful or wanton conduct, or conduct done with a wicked purpose. In contrast, Brokers moved HB Auto’s vehicles to the Lower Lot in a willful and wanton manner. Similarly, the evidence does not support a finding that HB Auto’s conduct was willful and wanton when it left the vehicles in the Lower Lot, or that it acted with a wicked purpose. Moving hundreds of vehicles is an onerous task, and the fact that HB Auto continued to pay rent of $750 per month to Brokers while the vehicles remained in the Lower Lot is evidence that HB Auto had a good faith belief that Brokers was, somehow, going to make HB Auto whole. Moreover, the extent to which HB Auto should have prevented the vandalism and deterioration is an issue of mitigation of damages rather than negligence.
Damages
In North Carolina, as a general rule, the measure of damages for injury to personal property is the difference between the fair market value of the property immediately before the injury and the fair market value of the property immediately after the injury.
Sprinkle v. N.C. Wildlife Res. Comm’n,
165 N.C.App. 721, 726 , 600 S.E.2d 473, 477 (2004). Accordingly, to find damages, the court must be presented with competent evidence of the value of the property before the injury and after the injury.
Id.
at 726-27 , 600 S.E.2d at 477 . The plaintiff must establish the amount of damages with reasonable certainty.
CDC Pineville, LLC v. UDRT of N.C., LLC,
174 N.C.App. 644, 655 , 622 S.E.2d 512, 520 (2005). “While the claiming party must present relevant data providing a basis for a reasonable estimate, proof to an absolute mathematical certainty is not required.”
State Props., LLC v. Ray,
155 N.C.App. 65, 76-77 , 574 S.E.2d 180, 188 (2002) (citation omitted) (concluding that plaintiffs evidence on damages in the form of a witness opining on the cost of remediation was sufficient to provide a basis for a jury’s calculation of damages with a reasonable certainty).
Various sources of evidence may be competent to calculate the difference between the value of the property before and after the injury with a reasonable certainty. Competent evidence of value includes the opinion of an expert or lay witness who has knowledge of the property value based on experience, information and observation.
See Huff v. Thornton,
287 N.C. 1, 5 , 213 S.E.2d 198, 202 (1975) (finding that witnesses who were obviously better qualified by their occupational experience than the jury to form an opinion as
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to the nature and extent of the damage, the practicability of repair, and the fair market value of property before and after damage were qualified to testify as an expert witnesses);
United Leasing Corp. v. Guthrie,
666 S.E.2d 504, 508 (N.C.App. 2008) (finding project manager’s lay opinion as to value of inventory admissible);
Sexton v. Barber,
71 N.C.App. 175, 177-78 , 321 S.E.2d 467, 468 (1984) (finding testimony of witness with experience as car dealer and knowledge of property admissible);
Williams v. Hyatt Chrysler-Ply mouth, Inc.,
48 N.C.App. 308, 317 , 269 S.E.2d 184, 190 (1980) (finding plaintiffs opinion of the value of a vehicle, when plaintiff owned vehicle for 26 months and drove the vehicle approximately 40,000 miles, competent evidence);
Hubbard v. Lumbermen’s Mutual Cas. Co.,
24 N.C.App. 493, 496 , 211 S.E.2d 544, 546 (1975) (holding that plaintiffs testimony as to value of vehicle before and after theft was competent evidence to support trial court’s finding of damages). Standardized valuation guides such as NADA, purchase price, and the cost of repairs or improvements after purchase may also be considered.
In re Chra-pliwy,
207 B.R. 469, 473-74 (Bankr. M.D.N.C.1996) (“Price lists or guidelines such as
NADA
should serve as a starting point for the valuation of the collateral before the court. Either party then should be permitted to offer evidence regarding the condition and worth of the particular collateral in question and whether it should be valued below or above the published value which is used as the starting point. The
NADA
value thus is some evidence of the value of the automobile but is not conclusive.”);
Lincoln v. Grinstead,
94 N.C.App. 122, 127 , 379 S.E.2d 671, 674 (1989) (considering the purchase price and the cost of newly installed stereo equipment when determining value). Additionally, evidence of estimated cost of repairs is competent to assist in determining the difference between the value of the property before the injury and after the injury.
Roberts v. Pilot Freight Carriers, Inc.,
273 N.C. 600, 606 , 160 S.E.2d 712, 717 (1968). “If there is a question regarding the reliability of the evidence presented to support an award of damages, the questions should go to the weight of the evidence, and generally should not be grounds for exclusion of the evidence.”
CDC Pineville, LLC,
174 N.C.App. at 655 , 622 S.E.2d at 520 .
See also Huff,
287 N.C. at 6 , 213 S.E.2d at 202 (“The fact that [the witnesses] had not actually visited the house prior to the occurrence would go to the weight to be given their estimate of its prior value, not to its admissibility.”).
In a tort action, a defendant is also responsible for all pecuniary losses which are the natural and probable consequence of the misconduct given the facts as they existed at the time the misconduct was committed and which can be ascertained with a reasonable degree of certainty.
Watts v. N.C. Dept. of Env’t and Natural Res.,
182 N.C.App. 178, 185-86 , 641 S.E.2d 811, 818 (2007).
See also Huff,
287 N.C. at 8-9 , 213 S.E.2d at 204 (allowing recovery for damage to plaintiffs’ home as well as for loss of use of their home while it was under repair from the damage sustained when defendants’ truck struck the residence);
Sprinkle,
165 N.C.App. at 729 , 600 S.E.2d at 478 (holding that loss of use recovery is generally allowed for injury to pleasure vehicles). The scope of the recovery of damages in a tort action, which includes consequences that are the natural and probable result of the misconduct, is more liberal than the scope of recovery of damages in a contract action.
Champs Convenience Stores, Inc. v. United Chem. Co.,
329 N.C. 446, 462 , 406 S.E.2d 856, 865-66 (1991) (including overhead expenses incurred while plaintiff unable to operate business as part of damages).
*726
Here, the Court received a variety of evidence related to value including the date when HB Auto purchased the vehicle, the purchase price, the NADA value, HB Auto’s estimate of value prior to the incident, HB Auto’s estimate of value after the incident, Spears’s estimate of value after incident, Spears’s estimate of value on August 1, 2007, photos, various testimony and exhibits documenting condition, title histories, and bills of sale. The Court received more information regarding some vehicles than others. The Court has carefully considered the evidence presented as to each vehicle, including the reliability, relevance, and credibility thereof, in order to determine the fair market value of each vehicle immediately before Brokers moved the vehicle to the Lower Lot with a forklift and the fair market value of each vehicle immediately after Brokers moved the vehicle to the Lower Lot. These figures are necessary to determine the amount of initial damages, that is, those damages incurred during the process of moving the vehicles. The Court has also examined the evidence to determine the present fair market value
22
of each vehicle damaged, which is necessary to calculate the amount of damages caused by the deterioration of the vehicles due to exposure and damages that were the natural and probable consequence of Brokers’s misconduct. Lastly, the Court has examined the record for evidence of intervening criminal acts to determine what amount, if any, is attributable to intervening criminal acts and, therefore, for which Brokers is not liable.
Findings applicable to all vehicles:
First, the Court was presented with various evidence relevant to determining the fair market value of each vehicle immediately before the injury including the NADA value, HB Auto’s original estimate of value, the date of purchase, and the purchase price. The date of purchase is relevant to determine whether the vehicle had been sitting on the Property, unused, for an extended period of time prior to the incident. Such a fact might suggest that the vehicle’s condition had deteriorated or that the vehicle was not marketable for whatever reason. The Court was presented with some evidence of vehicle condition at the time of purchase such as bills of sale, title histories, and mileage information. The bills of sale document certain “announced conditions” such as salvage history, high mileage, or frame damage. The Court was also provided with extensive testimony regarding the valuation of used vehicles.
HB Auto urges the Court to find that the fair market value of each vehicle immediately before the injury is the NADA value, while Brokers contends that the fair market value of each vehicle immediately before the injury was the purchase price. All parties agree, however, that the NADA value is the value of an “average” vehicle. In this case, the Court has received specific evidence regarding the condition of each vehicle and the majority of the vehicles were in less than average condition, therefore the evidence does not support a finding that the value of each vehicle was equal to the NADA value for an “average” vehicle. Notwithstanding, the NADA value is relevant when viewed in light of the evidence regarding each vehicle’s condition and the very credible testimony of both Spears and Twigg regarding standard industry deductions taken from the NADA value for various vehicle conditions or types of history.
*727
In contrast, the purchase price carries little weight. The vehicles were purchased at auctions, in a wholesale setting where, according to both the Ahmadis and Spears, the purchase price can be very low. It follows that a noticeably high purchase price may be evidence that a vehicle was in particularly good condition or very desirable for some other reason. It is undisputed that HB Auto’s business revolves around repairing and refurbishing vehicles prior for resale, thereby making a profit. That is, HB Auto is in the .business of increasing the fair market value of vehicles subsequent to purchase. Finally, the testimony of Twigg, who stated that the purchase price was not a factor he considered when he appraised vehicles, and Spears, who stated that there is no relationship between the purchase price of a vehicle at auction and the value of the vehicle, also leads this Court to conclude that the purchase price should be given very little weight.
After careful consideration, however, the Court finds that HB Auto’s original estimates of value, carry a great deal of weight, given the Ahmadis’ relevant experience, familiarity, and knowledge despite the fact that HB Auto now contends that the NADA value should be utilized. HB Auto’s estimates of value are contained on Defendant’s Exhibit 2, a spreadsheet that was prepared in excess of a year prior to the trial under the direction of HB Auto’s prior counsel. When viewed in conjunction with the other evidence in this case, particularly the testimony of Spears and Twigg and each vehicle’s individual history in this case, these values are generally very credible. Some of these estimates of value prior to being damaged by Brokers exceed the NADA value.
23
At trial, however, HB Auto did not assert that any of the vehicles were worth more than the NADA value, and Hassan Ahmadi testified, when asked to describe the condition of the vehicles before he left for Iran, that “some of them was average, some of them was below average, but they were in good condition.” Therefore, the Court finds that none of the vehicles were worth more than the NADA value of an average vehicle prior to being moved to the Lower Lot by Brokers.
Next, the Court was presented with extensive evidence relevant to the value of each vehicle immediately after the injury including HB Auto’s estimate, Spears’s estimate, witness testimony, photos, Twigg’s report, and Spears’s report. Spears inspected the vehicles in 2007 at HB Auto’s present location and his expert report contains a detailed and credible description of the forklift damage sustained by each vehicle. The Court has reviewed the evidence of damage as to each vehicle as documented by Spears to ensure that each vehicle was, indeed, damaged. The testimony by the Ahmadis, Hunt, Leonard, and Deweese supports a finding that any forklift damage identified by Spears and Twigg on a vehicle purchased while HB Auto operated its business on the Property was caused by Brokers’s negligence and trespass.
In Spears’s report, he calculated his estimates operating under the assumption that all of the vehicles were “ready for sale” prior to being moved and he considered
only
forklift damage, not other collision type damage. There is undisputed
*728
evidence that some vehicles sustained other types of damage when moved. Also, some of the vehicles were not in a condition that could be properly described as “ready for sale.” As a result, Spears’s estimates do not carry much weight, though they may shed some light on the condition of the vehicle when viewed in conjunction with other evidence. In contrast, HB Auto’s estimate as contained in Defendant’s Exhibit 2 considers the total value of each vehicle after the incident (rather than a hypothetical value based upon an “average” vehicle with only forklift damage). The Ahmadis have extensive experience and expertise in the used vehicle and auto repair business, and they were able to inspect each vehicle shortly after the incident, rather than five years later. HB Auto’s estimates are comparable, on average,
24
to those of Spears, though each figure was calculated independently of the other. The Court concludes that HB Auto’s estimate for the value of each vehicle immediately after the injury is generally very reliable and competent evidence.
25
Unless otherwise noted to the contrary, the Court finds that HB Auto has established Brokers damaged each vehicle and that the value of each vehicle immediately after being moved to the Lower Lot is equal to HB Auto’s estimate of value after the incident.
Lastly, as to all of the vehicles, the Court finds that the evidence presented by HB Auto through its expert, Spears, of each vehicle’s present value (as of August 1, 2007) is both reliable and credible. Spears was qualified by the Court as an expert in the valuation of used vehicles and he individually examined each vehicle for which HB Auto claims damages. No evidence of present value was presented by Brokers. Therefore, the Court finds that the present value of each vehicle is equal to Spears’s estimate of value as of August 1, 2007.
A review of the evidence presented as to each vehicle and the Court’s findings specific to each vehicle are set forth below.
26
In addition, the Court’s findings related to the calculation of damages are summarized in a chart attached as Exhibit A.
Vehicle # 1
Description:
1997 Pontiac Grand Am, VIN 1G2NE52T4VC795673, 4-door, red
Mileage:
86,138
Date purchased by HB Auto:
November 21, 2001
Purchase price:
$1,955
NADA value on August 1,
2002:
27
$5,300
HB Auto’s estimate of value prior to incident:
$3,900
*729
HB Auto’s estimate of value after incident:
$1,000
Spears’s estimate of value after incident:
$900
Spears’s estimate of present value (as of August 1, 2007):
$100
Other evidence:
The bill of sale indicates that at the time HB Auto purchased the vehicle, the check engine light was on and a right window was inoperable. The vehicle was sold as a red light. In the title history, the damage disclosure statement indicates that the vehicle had not sustained damage exceeding 25% of the total value. The vehicle had no salvage, flood, theft or reconstruction history. Spears’s expert report indicates forklift damage on the right front door, right rear door, and floorboard, and it notes that the vehicle’s interior has deteriorated, the tires are dry-rotted, and the paint is faded. Twigg’s expert report states Vehicle # 1 has no damage and no forklift damage.
Based upon the evidence presented, the Court finds that Vehicle # 1 had a value of $3,900 immediately before the incident. The vehicle was in less than average condition at the time of purchase, but none of the announced conditions on the bill of sale were conditions that would permanently impact the vehicle’s value. HB Auto’s own value of Vehicle # 1 is 74% of the NADA value, and as such, falls well within the parameters for vehicle valuation as described by Twigg and Spears.
Vehicle # 2:
Description:
1997 Plymouth Neon, VIN 1P3ES27C7VD148108 4-door, blue
Mileage:
112,531
Date purchased by HB Auto:
June 13, 2001
Purchase price:
$1,450
NADA value on August 1, 2002:
$3,425
HB Auto’s estimate of value prior to incident:
$2,900
HB Auto’s estimate of value after incident:
$900
Spears’s estimate of value after incident:
$800
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
The bill of sale indicates that at the time HB Auto purchased the vehicle, it had over 100,000 miles and frame damage. The damage disclosure statement on the title does not indicate that the vehicle has been damaged to the extent that the cost of repair exceeded 25% of the fair market value. The vehicle was sold to HB Auto at auction as a red light. Spears’s expert report indicates forklift damage to the floor boards, rocker panel, and the left front and rear doors. Spears also notes faded and peeling paint, dry-rotted tires due to deterioration, and missing parts, including the vehicle’s airbags. Twigg’s expert report indicates the vehicle has forklift damage with a minor dent on the left rear door and “bad paint.”
Based upon the evidence presented, the Court finds that Vehicle # 2 had a value of $2,900 immediately before the incident, which is HB Auto’s estimate of value. There is evidence that the vehicle had certain conditions (frame damage and high mileage) at the time of purchase that would continue to impact its value even after repairs, but it had not been damaged in excess of 25% of its fair market value. HB Auto’s own value for Vehicle #2 is 84.7% of the NADA value, and falls in line with the expert testimony that the standard value of a vehicle with repaired frame damage is 10% less than the NADA retail value. The Court notes that this vehicle was purchased on June 13, 2001 and as a general practice HB Auto promptly repaired vehicles for resale.
*730
Lastly, since interior parts such as the airbags are missing, the Court can only assume the existence of an intervening criminal act. The vehicle was not purchased during those few months that the Ahmadis were not repairing vehicles; therefore, the airbags would have been intact prior to being moved. The Ahmadis did not use these vehicles for parts after they were moved to the Lower Lot. This criminal act (that is, the break-in and theft of parts) relieves Brokers of liability for subsequent damage by breaching the causal connection between its own negligence and the subsequent injury. The Court simply cannot determine with any reasonable degree of certainty the amount of subsequent damage proximately caused by Brokers. Therefore, the Court will not award damages for injury to Vehicle #2 subsequent to it being moved to the Lower Lot.
Vehicle # 3:
Description:
1991 Ford Aerostar, VIN 1FMDA31U8MZA21659, white
Mileage:
8,107
Date purchased by HB Auto:
June 26, 2001
Purchase price:
unknown
NADA value on August 1, 2002:
$4,075
HB Auto’s estimate of value prior to incident:
$3,000
HB Auto’s estimate of value after incident:
$800
Spears’s estimate of value after incident:
$500
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
The odometer disclosure on title indicates that the mileage stated is in excess of the mechanical limits of the vehicle’s odometer. Spears’s expert report indicates forklift damage to the floorboards, rocker panels and drive shaft. His report also notes faded paint and dry-rotted tires due to deterioration. Twigg’s expert report indicates no forklift damage. The photos entered into evidence show vertical indentations on the right side of the vehicle.
Based upon the evidence presented, the Court finds that Vehicle # 3 had a value of $3,000 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $4,075 (a figure which takes into account the mileage) and there is little evidence of the vehicle’s condition at the time of purchase other than that the mileage on the vehicle was very high. Therefore, HB Auto’s own value for Vehicle # 3 which is only 73.6% of the NADA value, is reasonable even given that the mileage has exceeded the mechanical limits of the odometer. While the deduction off the NADA value is large, HB Auto was in a position to know of other conditions which would lower the vehicle’s value. HB Auto has also established that Brokers damaged the vehicle when moving it to the Lower Lot, reducing its value to $800.
Vehicle # 4:
Description:
1996 Mercury Mystique, VIN 1MELM6534TK612748, 4-door, white
Mileage:
70,753
Date purchased by HB Auto:
July 10, 2001
NADA value on August 1, 2002:
$5,100
HB Auto’s estimate of value prior to incident:
$2,900
HB Auto’s estimate of value after incident:
$1,500
Spears’s estimate of value after incident:
$500
Spears’s estimate of present value (as of August 1, 2007):
$100
*731
Other evidence:
Spears’s expert report indicates the vehicle has forklift damage to the floor board and rocker panel. It also notes that the interior is deteriorated, the tires are dry-rotted, the paint is faded, and the vehicle has miscellaneous dings. Twigg’s expert report states no damage and no forklift damage.
Based upon the evidence presented, the Court finds that Vehicle # 4 had a value of $2,900 immediately before the incident. The NADA value at that time was $5,100, and there is little evidence of the vehicle’s condition at the time of purchase. HB Auto’s own value for Vehicle # 4 is only 56.9% of the NADA value and is very reasonable, even assuming the vehicle was in less than average condition when purchased.
Vehicle # 5
Description: 1997 Dodge Stratus, VIN 1B3EJ46X3VN646286
Mileage:
85,804
Date purchased by HB Auto:
March 20, 2001
NADA value on August 1, 2002:
$4,950
HB Auto’s estimate of value prior to incident:
$4,100
HB Auto’s estimate of value after incident:
$1,500
Spears’s estimate of value after incident:
$1,200
Spears’s estimate of present value (as of August 1, 2007):
$150
Other evidence:
The damage disclosure statement on title does not indicate that the vehicle had been damaged to the extent that the cost of repair exceeded 25% of the fair market value when HB Auto purchased it. Spears’s expert report indicates the vehicle has forklift damage to floor boards and rocker panels. His report also notes that the interior is deteriorated, the tires are dry-rotted, and the paint is faded and cracking. Twigg’s expert report indicates the vehicle has “bad paint” and no forklift damage.
Based upon the evidence presented, the Court finds that Vehicle # 5 had a value of $4,100 immediately before the incident, which is equal to HB Auto’s estimate of value. The vehicle was five years old at the time of purchase and there was not a disclosure that it had been damaged in excess of 25% of its fair market value. HB Auto’s own value for Vehicle # 5 is only 82.8% of the NADA value and is within the range of reasonableness as set forth by the experts, even assuming the vehicle was in less than average condition when purchased.
Vehicle # 6
Description:
1991 Mercury Cougar, VIN 1MEPM6049MH616584, 2-door, green
Mileage:
109,509
Date purchased by HB Auto:
January 16,1999
Purchase price:
unknown
NADA value on August 1, 2002:
$3,300
HB Auto’s estimate of value prior to incident:
$2,100
HB Auto’s estimate of value after incident:
$500
Spears’s estimate of value after incident:
$650
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
Spears’s expert report indicates the vehicle has forklift damage to the floor boards and rocker panel, and also that the interior and tires are dry-rotted, and the paint is faded and peeling. Twigg’s expert report indicates the vehicle has forklift damage with the front bumper cover damaged. The photo of Vehicle # 6 shows damage to the front of the vehicle.
*732
Based upon the evidence presented, the Court finds that Vehicle # 6 had a value of $2,100 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $3,300. The Court notes that the vehicle had been sitting on the lot for an extended period: in excess of three years. HB Auto’s own value for Vehicle # 6 is well below the NADA value (only 63.64% of the NADA value), and the Court concludes that this figure is credible especially in light of the fact that it had been sitting, deteriorating, for so long. The Court notes that there is no dispute among the experts that this vehicle sustained some form of forklift damage.
Vehicle # 7:
Description:
1988 BMW 735i, VIN WBAGB4313J3203451, 4-door, white
Mileage:
unknown
Date purchased by HB Auto:
April 10, 2000
NADA value on August 1, 2002:
$7,300
HB Auto’s estimate of value prior to incident:
$3,500
HB Auto’s estimate of value after incident:
$1,000
Spears’s estimate of value after incident:
$2,000
Spears’s estimate of present value (as of August 1, 2007):
$1,000
Other evidence:
Spears’s expert report indicates the vehicle has forklift damage to the floor boards and rocker panel, the right rear door, and the right rear door window. The tires are dry-rotted, the paint is faded and the interior depreciated. Twigg’s expert report indicates forklift damage on the left rear door and broken glass. The photos of Vehicle # 7 show that the right rear door is damaged, the window is broken, and the frame around that window is damaged. Hossein Ahmadi testified that HB Auto repainted the vehicle after it was purchased and that HB Auto was unable to complete work on vehicles within its usual three or four-month time frame.
Based upon the evidence presented, the Court finds that Vehicle # 7 had a value of $3,500 immediately before the incident, which is equal to HB Auto’s estimate of value. There is evidence that the vehicle had been prepared for sale prior to being moved inasmuch as HB Auto had painted its exterior. While the vehicle had been owned by HB Auto for approximately two years prior to the incident, there is evidence that the delay in resale was due in part to the vehicle being repainted. HB Auto’s own value for Vehicle # 7 is credible and competent as it is less than half of the applicable NADA value. The Court further notes that as the value of Vehicle # 7 immediately after incident was $1,000 and Spears’s estimate of present value (as of August 1, 2007) is $1,000, the vehicle suffered no material depreciation in value during the time period that it sat on the Lower Lot.
Vehicle # 8
Description:
1995 Mitsubishi Eclipse, VIN 4A3AK44Y8SE023860, green
Mileage:
74,098
Date purchased by HB Auto:
May 17, 2000
Purchase price:
$1,850
NADA value on August 1, 2002:
$7,275
HB Auto’s estimate of value prior to incident:
$4,200
HB Auto’s estimate of value after incident:
$1,800
Spears’s estimate of value after incident:
$1,100
Spears’s estimate of present value (as of August 1, 2007):
$200
Other evidence:
The bill of sale reflects that the vehicle was sold to HB Auto at auction in the salvage line and it has the
*733
words “Flood not on title” written on it. Hassan Ahmadi testified that this notation was on Vehicle # 8’s bill of sale because Greensboro Auto Auction announced the vehicle as a flood vehicle, though there is no history of such on the title itself. Hassan Ahmadi testified that the fact that the vehicle was announced as a flood vehicle would affect the value by 10-15%. The damage disclosure statement on the title does not indicate that the vehicle has been damaged to the extent that the cost of repair exceeded 25% of the fair market value. Spears’s expert report indicates that the vehicle has forklift damage to the floor boards and rocker panel, and it states that the tires are dry-rotted, the paint is faded, the interior is rotten and glass is broken. Twigg’s expert report indicates no forklift damage and “rough vehicle.” The photo shows the broken glass and what appears to be mud coating the inside of the wheel well.
Based upon the evidence presented, the Court finds that Vehicle # 8 had a value of $4,200 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $7,275. Hassan Ahmadi testified that the value of the vehicle was reduced by 10-15% simply because it was sold at auction as a flood vehicle, even though the title did not indicate it had a flood history. As both experts and the Ahmadis testified, the fact that the vehicle was sold in the salvage line does not impact its value. The Court notes, however, that Vehicle # 8 had been sitting on HB Auto’s lot for approximately two years, with no explanation as to why. The Court finds that this fact reflects poorly on the vehicle’s value. Therefore, the Court finds that HB Auto’s own value for Vehicle # 8 is credible and includes an ample discount for the possible flood history as it is more than 40% off the applicable NADA value. The Court also confirms that HB Auto has established forklift damage that reduced the value of Vehicle # 8 to $1,800.
Vehicle # 9
Description:
1999 Ford E-150, VIN 1FMRE11W9XHA42921, white Van
Mileage:
162,262
Date purchased by HB Auto:
November 27, 2002
Purchase price:
$1,000
NADA value on August 1, 2002:
$10,000
HB Auto’s estimate of value prior to incident:
$6,000
HB Auto’s estimate of value after incident:
$3,100
Spears’s estimate of value after incident:
$2,800
Spears’s estimate of present value (as of August 1, 2007):
$300
Vehicle # 9 must be excluded from the list of vehicles damaged by Brokers’s negligence. This vehicle was purchased in late November 2002, which was after HB Auto had relocated to the new location, and therefore, must have been damaged in an incident separate to that which is at issue in the Complaint. Accordingly, HB Auto is not entitled to any damages attributable to Vehicle # 9.
Vehicle # 10
Description:
1996 Mitsubishi Mirage, VIN JA3AA11A5TU019170, red, 2-door
Mileage:
79,696
Date purchased by HB Auto:
August 12,1998
Purchase price:
$1,000
NADA value on August 1, 2002:
$3,500
HB Auto’s estimate of value prior to incident:
$3,500
HB Auto’s estimate of value after incident:
$1,200
Spears’s estimate of value after incident:
$400
*734
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
Spears’s expert report indicates the vehicle has forklift damage to the floor boards, rocker panel, right quarter, and right door. His report also notes that the interior and tires are dry-rotted, the paint is faded, and some exterior parts are missing. The copy of the title admitted into evidence is virtually illegible, but it does not contain a disclosure that the vehicle was damaged in excess of 25% of its value. The photos of Vehicle # 10 show vertical and other indentations on the right rear of the vehicle. Twigg testified that Vehicle # 10 was one of the few vehicles he examined underneath. He found damage to the right rocker panel, however his expert report indicates no forklift damage. He also indicated that the paint needed to be touched up and lamps were missing.
Based upon the evidence presented, the Court finds that Vehicle # 10 had a value of $2,975 immediately before the incident. HB Auto’s estimate of the value of the vehicle prior to the incident is $3,500, and the NADA value of the vehicle at that time was also $3,500. The Court notes, however, that Vehicle # 10 had been sitting on HB Auto’s lot for approximately three and a half years prior to the incident with no explanation as to why. This fact reflects poorly on the vehicle’s value. Ample evidence was presented that the condition of a vehicle deteriorates when it sits, parked, for extensive periods of time. At minimum, even if the vehicle was started and driven periodically, the paint would fade. Because HB Auto’s own value for Vehicle # 10 includes no reduction off the NADA value for such deterioration, the Court cannot find that this figure is credible and finds that a deduction from the NADA value is appropriate. The Court notes that Twigg and Spears agree that this vehicle sustained forklift damage on its rocker panel.
Vehicle # 11
Description:
1992 Infinity G-20, VIN JNKCP01P8NT310048, gold, 4-door
Mileage:
77,193
Date purchased by HB Auto:
May 6, 1998
Purchase price:
$2,450
NADA value on August 1, 2002:
$7,825
HB Auto’s estimate of value prior to incident:
$4,500
HB Auto’s estimate of value after incident:
$2,500
Spears’s estimate of value after incident:
$1,000
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
Spears’s expert report indicates that the vehicle has forklift damage to the floor board and rocker panel. His report also states that the tires are dry-rotted, the paint is faded, cracking, and peeling, and the interior is depreciated. Twigg’s expert report states “bad paint” and no forklift damage. The photo shows peeling paint and cracks in the leather on the dashboard. In trial, Hossein Ahmadi confirmed in testimony that Vehicle # 11 was purchased in 1998.
Based upon the evidence presented, the Court finds that Vehicle # 11 had a value of $4,500 immediately before the incident, which is equal to HB Auto’s estimate of value. While the NADA value at that time was $7,825, Vehicle # 11 had been sitting on HB Auto’s lot for approximately four years, with no explanation as to why. This fact reflects poorly on the vehicle’s value. HB Auto’s value for Vehicle # 11 includes a discount off the applicable NADA value sufficient to account for the vehicle’s deterioration prior to the incident. After con
*735
sidering all of the evidence, the Court finds HB Auto’s estimate the most credible and competent evidence of Vehicle # ll’s value immediately before it was damaged by Brokers.
Vehicle # 12
Description:
1997 Mazda Millenia, VIN JM1TA2218V1308949, white, 4-door
Mileage: 119,874
Date purchased by HB Auto:
May 15, 2002
Purchase price:
$3,950
NADA value on August 1, 2002:
$7,825
HB Auto’s estimate of value prior to incident:
$6,500
HB Auto’s estimate of value after incident:
$3,000
Spears’s estimate of value after incident:
$2,500
Spears’s estimate of present value (as of August 1, 2007):
$300
Other evidence:
The bill of sale indicates the vehicle was sold to HB Auto at auction as damaged and disabled and as a red light. The vehicle had a blown head gasket and “miles over.” The damage disclosure statement on the title indicates that the vehicle had not been damaged to the extent that the cost of repair exceeded 25% of the fair market value, and it was not a flood vehicle. Spears’s expert report states that a forklift damaged the rocker panel and scratched the right side, the tires are dry-rotted, the paint is faded, the interi- or is depreciated, and the right front end is damaged. Twigg’s expert report indicates “bad paint,” no damage, and no forklift damage. Hossein Ahmadi testified that when HB Auto purchases a vehicle with a broken head gasket, he takes the vehicle to the lot and fixes the head gasket, which would involve the purchase of a replacement head gasket and approximately five hours of labor.
As to this particular vehicle, Brokers questions the validity of HB Auto’s estimate of value on the basis that the purchase price was $3,950 and, therefore, contends that Vehicle # 12 could not have had a value of $6,500 just a few months later. Notwithstanding, the Court finds that HB Auto’s estimate of the value of Vehicle # 12 immediately before the incident is credible. First, the Court has received ample testimony that the purchase price of a vehicle is not generally a factor in calculating value. Further, Hossein Ahmadi testified that the head gasket would have been repaired, which would involve the expense of obtaining a replacement part and multiple hours of labor. The vehicle was purchased at auction and, as Hossein Ahmadi testified, the $6,500 value is based upon what HB Auto would have sold the vehicle for at that time and that the difference between the purchase price and the vehicle’s value after repair and detailing is “the way it works” for HB Auto’s business. The evidence establishes that Vehicle # 12 had not been damaged in excess of 25% of its fair market value and was not a flood or salvage vehicle. HB Auto’s estimate of the value of Vehicle # 12 is only 83.1% of the NADA value. The Court concludes that the value of Vehicle # 12 immediately prior to being damaged was $6,500 and that its value immediately following was $3,000.
Vehicle # 13
Description:
1994 Mazda MPV, VIN JM3LV5222R0622176, van
Mileage:
135,005
Date purchased by HB Auto:
June 13, 2001
Purchase price:
$500
NADA value on August 1, 2002:
$3,125
HB Auto’s estimate of value prior to incident:
$2,900
*736
HB Auto’s estimate of value after incident:
$1,800
Spears’s estimate of value after incident:
$800
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
The bill of sale indicates the vehicle was sold as a red light and indicates damaged and disabled with “miles over.” As to the odometer reading, the title discloses that the mileage stated is in excess of the vehicle’s mechanical limits. Spears’s expert report indicates that the vehicle has forklift damage to the floor board and rocker panel, the tires and interior are dry-rotted, the paint is faded, and the windows are “busted.” Twigg testified that he examined underneath Vehicle # 13 and found the left front rocker panel damaged and right rear damage that could have been related to a forklift. Twigg’s expert report indicates forklift damage to the left quarter panel. The photos also show damage to the right rear of the vehicle and a long vertical indentation on the left side of the vehicle.
Based upon the evidence presented, the Court finds that Vehicle # 13 had a value of $2,900 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $3,125. While there is evidence that the mileage on the vehicle is high, this fact is already accounted for with appropriate deductions in the listed NADA value. After considering all of the evidence, the Court finds HB Auto’s estimate the most credible and competent evidence of Vehicle # 13’s value immediately before it was damaged by Brokers. Spears and Twigg agree that this vehicle was damaged by a forklift.
Vehicle # 14
Description:
1994 Mazda 626, VIN 1YVGE22CXR5196879, 4-door
Mileage:
109,180
Date purchased by HB Auto:
August 2, 2001
Purchase price:
$650
NADA value on August 1, 2002:
$3,350
HB Auto’s estimate of value prior to incident:
$2,500
HB Auto’s estimate of value after incident:
$1,200
Spears’s estimate of value after incident:
$800
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
Spears’s expert report indicates that the vehicle has forklift damage to the floor boards and rocker panel, the tires are dry-rotted, the paint is faded, and the interior is depreciated. Twigg’s expert report indicates “bad paint” and no forklift damage.
Based upon the evidence presented, the Court finds that immediately before the incident Vehicle # 14 had a value of $2,500, which is equal to HB Auto’s estimate of value. As with Vehicle # 13, while there is evidence that the mileage on the vehicle is high, this fact is already accounted for with appropriate deductions in the listed NADA value. The Court notes that HB Auto’s estimate is only 74.6% of the NADA value. After considering all of the evidence, the Court finds HB Auto’s estimate is credible and competent evidence of Vehicle # 14’s value immediately before it was damaged by Brokers.
Vehicle # 15
Description:
1999 Kia Sephia, VIN KNAFB1213X5797788, black, 4-door
Mileage:
67,972
Date purchased by HB Auto: February 20, 2002 Purchase price:
$750
NADA value on August 1, 2002:
$5,175
HB Auto’s estimate of value prior to incident:
$3,000
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HB Auto’s estimate of value after incident:
$500
Spears’s estimate of value after incident:
$1,000
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
The bill of sale indicates Vehicle # 15 was sold to HB Auto as a red light as damaged and disabled. The damage disclosure statement on the title indicates that the vehicle had not been damaged to extent that the cost of repairs exceeded 25% of the value and that it was not a flood, salvage, or reconstructed vehicle. Spears’s expert report indicates that the vehicle has forklift damage on the right doors and rear suspension, the interior and tires are dry-rotted, the paint is faded, some glass is broken, and miscellaneous interior and exterior parts are missing. Twigg testified that the damage on Vehicle # 15 is consistent with a straight heavy impact to the rear of the vehicle, not forklift damage, and was in excess of 25% of the value. Also, the rear glass had been cut out or had been broken out by the trunk lid popping up from the rear impact, and the left front fender, hood, and bumper cover were missing. Twigg’s expert report lists rear bumper cover damage, rear glass removed, and implies forklift damage. Twigg testified that he should have made the notation “NFLD” on his report but overlooked it.
Based upon the evidence presented, the Court finds that immediately before the incident, Vehicle # 15 had a value of $3,000, which is equal to HB Auto’s estimate of value. The Court notes that HB Auto’s estimate is only 58% of the NADA value. After considering all of the evidence, the Court finds HB Auto’s estimate is credible and competent. In addition, the Court notes that Twigg’s testimony that Vehicle # 15 sustained a heavy impact in the rear is consistent with testimony by Hunt that some of the vehicles were pushed together with large earth moving equipment. HB Auto’s estimate that the value decreased from $3,000 to only $500 as a result of the damage inflicted by Brokers is also consistent with this evidence.
The Court also finds that there is clear evidence of the occurrence of an intervening criminal act after Brokers moved Vehicle # 15 to the Lower Lot. Various vehicle parts, including the fender, hood, and bumper cover, were stolen. This unforeseeable intervening act relieves Brokers of liability for subsequent damage by breaching the causal connection between its own negligence and the subsequent injury. Therefore, the Court will not award damages for injury to Vehicle # 15 subsequent to it being moved to the Lower Lot.
Vehicle # 16
Description:
1994 Infíniti Q-45, VIN JNKNG01D7RM256580, green, 4-door
Mileage:
121,952
Date purchased by HB Auto:
February 14, 2001
Purchase price:
$5,080
NADA value on August 1, 2002:
$8,125
HB Auto’s estimate of value prior to incident:
$7,500
HB Auto’s estimate of value after incident:
$3,000
Spears’s estimate of value after incident:
$5,000
Spears’s estimate of present value (as of August 1, 2007):
$300
Other evidence:
The bill of sale indicates Vehicle # 16 was sold to HB Auto as is, as a red light with “over 100,000 miles.” Spears’s expert report indicates there is forklift damage on the rocker panel, floor boards, and front bumper, and that the paint is faded, the tires dry-rotted, windshield cracked, and interior depreci
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ated. Twigg’s expert report indicates “bad paint” and no forklift damage. The photo reflects the damage to the front bumper.
Based upon the evidence presented, the Court finds that Vehicle # 16 had a value of $7,500 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $8,125. While there is evidence that mileage on the vehicle is high, this fact is already accounted for with appropriate deductions in the listed NADA value. The Court notes that HB Auto’s estimate is closer to the NADA value than most of HB Auto’s vehicles; however, the purchase price was also closer to the NADA value than most. After considering all of the evidence, the Court finds HB Auto’s estimate is credible and competent evidence of Vehicle # 16’s value immediately before it was damaged by Brokers. Also, the evidence supports a finding that Vehicle # 16 was damaged by Brokers when it moved it to the Lower Lot, reducing the value to $3,000.
Vehicle # 17
Description:
1991 Infinitó G-20, VIN JNKCP01P6MT211193, 4-door, red
Mileage:
102,639
Date purchased by HB Auto:
December 2,1998
Purchase price:
$600
NADA value on August 1, 2002:
$2,900
HB Auto’s estimate of value prior to incident:
$2,500
HB Auto’s estimate of value after incident:
$500
Spears’s estimate of value after incident:
$600
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
Spears’s expert report indicates that Vehicle # 17 has forklift damage on the rocker panels, floor boards, right rear and front doors, and fender, and that the paint is faded, the tires and interior dry-rotted, and miscellaneous interior and exterior parts are missing. Twigg’s expert report contains no information on Vehicle # 17. The photos reflect that the vehicle is severely damaged from both impact damage and vandalism. The hood is missing and it appears that parts have been ripped out of the engine.
Based upon the evidence presented, the Court finds that Vehicle # 17 had a value of $2,500 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $2,900. There is little evidence the vehicle’s condition at the time of purchase. HB Auto’s own value for Vehicle # 17 is 86.2% of the NADA value and is within the range of reasonableness as set forth by the experts.
The Court also finds that there is clear evidence of the occurrence of an intervening criminal act after Brokers moved Vehicle # 17 to the Lower Lot. This unforeseeable intervening act relieves Brokers of liability for subsequent damage by breaching the causal connection between its own negligence and the subsequent injury. The Court cannot determine what subsequent damages were proximately caused by Brokers and will not award damages for injury to Vehicle # 17 subsequent to it being moved to the Lower Lot.
Vehicle # 18:
Description:
1991 Hyundai Scoop, VIN KMHVE32J0MU023562, 2-door
Mileage:
81,610
Date purchased by HB Auto:
unknown
Purchase price:
unknown
NADA value on August 1, 2002:
unknown
HB Auto’s estimate of value prior to incident:
$2,800
*739
HB Auto’s estimate of value after incident:
$500
Spears’s estimate of value after incident:
no opinion
Spears’s estimate of present value (as of August 1, 2007):
no opinion
Other evidence:
Copy of Virginia title shows the vehicle was signed over to HB Auto at some point, but no date is listed.
The Court finds that HB Auto has not met its burden for proving damages attributable to Vehicle # 18. There is no evidence that this vehicle was one of those moved to the Lower Lot by Brokers other than the fact that it is listed on Plaintiffs Exhibit 3, which lists it as stolen. There is no photo of the vehicle. There is no evidence as to when the vehicle was stolen or whether a police report had been filed. Spears was unable to inspect this vehicle to verify forklift damage, and HB Auto provided no alternative source of evidence of damages to this vehicle, if indeed the vehicle was moved to the Lower Lot by Brokers.
Vehicle # 19
Description:
1996 Chevrolet Cavalier, VIN 1G1JC5246T7106644, 4-door, white
Mileage:
113,305
Date purchased by HB Auto:
May 30, 2001
Purchase price:
$1,000
NADA value on August 1, 2002:
$2,500
HB Auto’s estimate of value prior to incident:
$2,800
HB Auto’s estimate of value after incident:
$800
Spears’s estimate of value after incident:
$800
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
The bill of sale indicates the vehicle was sold to HB Auto at auction as a red light in the salvage line and notes “miles over.” The damage disclosure statement on the title does not indicate that the vehicle had been damaged to the extent that the cost of repair exceeded 25% of the fair market value. Spears’s expert report indicates there is forklift damage to the floor boards, rocker panels, left front door, and right front door and it notes that the tires and interior are dry-rotted and the paint is faded. Twigg’s report contains no information on this vehicle. The photos show vertical indentations on the front doors.
The Court finds that the value of Vehicle # 19 was $2,500 immediately prior to being damaged by Brokers. The Court notes that the vehicle had no announced conditions when purchased by HB Auto other than high mileage (which is accounted for in the NADA value).
Vehicle # 20:
Description:
1990 BMW 750ÍL,
28
VIN WBAGC831XLDC76644, 4-door
Mileage:
241,402
Date purchased by HB Auto:
January 23, 2002
Purchase price:
$425
NADA value on August 1, 2002:
$8,425
HB Auto’s estimate of value prior to incident:
$4,500
HB Auto’s estimate of value after incident:
$1,200
Spears’s estimate of value after incident:
$3,500
*740
Spears’s estimate of present value (as of August 1, 2007):
$400
Other evidence:
The bill of sale indicates Vehicle #20 had been a taxi and had “miles over.” It was sold to HB Auto as a red light in the salvage line. The damage disclosure statement on the title indicates that the vehicle had not been damaged to the extent that the cost of repair exceeded 25% of the fair market value. Spears’s expert report indicates there is forklift damage to the floor boards, rocker panels, and exhaust, and that the tires are dry-rotted, interior depreciated, and the paint is faded. Twigg’s report states the vehicle has no damage and no forklift damage. The photo reveals no obvious damage. Twigg testified that the fact that Vehicle # 20 was a taxi hurts its value.
The Court finds that the value of Vehicle # 20 was $4,500 immediately prior to being damaged by Brokers, which is the value estimated by HB Auto. This estimate is only 53.4% of the NADA value and is credible even in light of the evidence that this vehicle has a value less than NADA value because it was a taxi.
Vehicle # 21
Description:
1995 Geo Prizm,
29
VIN 1Y1SK5280SZ044139, 4-door, black
Mileage:
187,040
Date purchased by HB Auto:
October 3, 2001
Purchase price:
$995
NADA value on August 1, 2002:
$3,100
HB Auto’s estimate of value prior to incident:
$2,500
HB Auto’s estimate of value after incident:
$1,400
Spears’s estimate of value after incident:
$400
Spears’s estimate of present value (as of August 1, 2007):
$25
Other evidence:
The bill of sale indicates “over 100,000 miles” and that HB Auto purchased it at auction as a red light. The damage disclosure statement on the title indicates that the vehicle had not been damaged to the extent that the cost of repair exceeded 25% of the fair market value, but that the mileage stated is in excess of the mechanical limits of the odometer. Spears’s expert report indicates there is forklift damage on the floor board and the front bumper, which is torn off. It also indicates that the paint is faded and peeling, the tires and interior dry-rotted, and the windshield is cracked. Twigg’s expert report states “bad paint” and no forklift damage. The photo in evidence shows the damaged front bumper.
Based upon the evidence presented, the Court finds that Vehicle # 21 had a value of $2,500 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was $3,100. There is little evidence of the vehicle’s condition at the time of purchase, though the mileage has exceeded the mechanical limits of the odometer. HB Auto’s value is certainly within the bounds of reasonableness based upon the expert testimony. HB Auto has also established that forklift damage caused by Brokers’s negligence and trespass damaged Vehicle # 21 in the amount of $1,100. Unlike the majority of the vehicles, Spears’s report does not list rocker panel damage along with the floorboard damage, and there is evidence that rocker panel damage is more costly to repair than floorboard damage. Nevertheless, in this instance, Brokers
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also damaged the vehicle’s front bumper, therefore this amount is credible.
Vehicle # 22
Description:
2000 Pontiac Grand Am, VIN 1G2NF52E9YC514406
Mileage:
39,214
Date purchased by HB Auto:
July 11, 2001
Purchase price:
$2,900
NADA value on August 1, 2002:
$10,725
HB Auto’s estimate of value prior to incident:
$6,000
HB Auto’s estimate of value after incident:
$3,000
Spears’s estimate of value after incident:
$2,800
Spears’s estimate of present value (as of August 1, 2007):
$500
Other evidence:
The damage disclosure statement on the title does not indicate that when HB Auto purchased the vehicle, it had been damaged to the extent that the cost of repair exceeded 25% of the fair market value. Spears’s expert report indicates there is forklift damage to the floor boards, rockers, the right quarter, and both right doors. It also indicates that the paint is faded, the tires dry-rotted, and it has miscellaneous missing parts. Twigg’s expert report indicates no damage, forklift or otherwise.
Based upon the evidence presented, the Court finds that Vehicle # 22 had a value of $6,000 immediately before the incident, which is HB Auto’s estimate of value. The NADA value was over $10,000, and the vehicle did not have any known conditions at the time of purchase that would continue to impact its value even after repairs. The vehicle was only one model year old when purchased and it had no history of 25% damage. HB Auto’s own value of Vehicle # 22 is 55.9% of the NADA value, and falls well below the parameters set forth by the experts in this case.
Vehicle # 23
Description:
1997 Plymouth Neon, VIN 1P3ES27C5VD200268, 4-door, red
Mileage:
143,766
Date purchased by HB Auto:
July 11, 2001
Purchase price:
$890
NADA value on August 1, 2002:
$2,600
HB Auto’s estimate of value prior to incident:
$2,600
HB Auto’s estimate of value after incident:
$1,000
Spears’s estimate of value after incident:
$1,000
Spears’s estimate of present value (as of August 1, 2007):
$50
Other evidence:
The bill of sale indicates the vehicle was sold to HB Auto at auction as a red light, as is, with announced conditions including “engine locked” and over 100,000 miles. Title indicates mileage in excess of mechanical limits of the odometer. The damage disclosure statement on the title does not indicate that the vehicle had been damaged to the extent that the cost of repair exceeded 25% of the fair market value. Spears’s expert report indicates there is forklift damage on the floor boards, rockers, right front door, right fender, right rear door, right quarter and suspension. It also indicates that the paint is faded, the tires and interior are dry-rotted, and some miscellaneous parts are missing. Twigg’s expert report indicates forklift damage to the right fender. Spears testified that when he inspected Vehicle # 23, he was not aware that when the vehicle was sold to HB Auto, it had a locked engine. Has-san Ahmadi testified that Vehicle # 23 was repaired with a new starter.
*742
Based upon the evidence presented, the Court finds that Vehicle # 23 had a value of $2,600 immediately before the incident, which is equal to HB Auto’s estimate of value. The NADA value at that time was also $2,600. There is evidence of some mechanical problems at the time of purchase, but there is also evidence that the vehicle was repaired. Though the mileage has exceeded the mechanical limits of the odometer, the $2,600 value takes into account the high mileage. While HB Auto had very few vehicles that were actually worth the NADA value, the Court takes note of the fact that the purchase price of the vehicle at auction was $890, and that price was paid by HB Auto knowing that the vehicle needed repairs which would require the expense of parts and labor, as well as the usual $200 detailing expense. There is no dispute that this vehicle shows signs of forklift damage.
Vehicle # 24
Description:
1996 Chevro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1538977. Public record. Not legal advice.