NO. 87-501 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DEBRA LANE, 

Plaintiff and Respondent, 

-vsLARRY DUNKLE , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lloyd E. Hartford, Billings, Montana 

For Respondent: 

Jerrold L. Nye, Nye and Meyer, P.C., Billings, Montana 

Submitted on Briefs: March 3, 1988 

Decided: April 14, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant/appellant Larry Dunkle (Dunkle) appeals from 

an order of the Thirteenth Judicial District Court awarding 

plaintiff/respondent Debra Lane (Lane) $2,857.42 for 

conversion of her commission and expense checks and $25,000 

in punitive damages. We affirm. 

We are presented with the following issues: 

1. Was there sufficient evidence to submit plaintiff's 

conversion theory to the jury? 

2. Whether the District Court erred in entering 

judgment awarding punitive damages? 

Debra Lane intially associated with Globe Life and 

Accident Insurance Company (Globe) on April 16, 1984 under 

the terms and conditions of an Independent Agent's Contract. 

Dunkle, who was manager of the Billings' Globe office from 

March, 1984, through June, 1985, was Lane's supervisor. Lane 

worked as an insurance salesperson for Globe and was paid 

according to initial sales and "commissions on renewals" 

meaning she was paid after premiums of previous policies were 

paid by policy holders. 

Globe issued three commission checks payable to 

Lane on April 16, May 13, and June 4, of 1985. Globe also 

previously issued a fourth check in Lane's name for $100 to 

offset her expenses while she was training in Livingston, 

Montana. She endorsed this check over to Dunkle upon 

assurances by Dunkle that her expenses would be paid on the 

trip and any excess would be reimbursed at the following 

Monday morning meeting. JJane never received any money at 

this juncture and in fact paid Dunkle an additional $86. At 

trial, Dunkle testified that he forged Debra Lane's signature 
on the three commission checks, cashed them, and never 

informed Lane that he had the money. 

Dunkle argues Lane's employment at Globe terminated 

prior to April of 1985 and therefore she was not entitled to 

the commissions. The record shows Lane received formal 

written termination from Globe on June 28, 1985. Dunkle was 

informed by superiors to formally terminate Lane and he 

drafted this letter on June 27, 1985. 

Lane originally filed a complaint on July 8, 1985. The 

complaint was amended March 31, 1987. In addition to the 

claim of conversion, Lane alleged the following: sexual 

harassment; threats of physical harm and injury causing 

emotional distress; that Dunkle forced her to use illegal and 

unethical methods in the sale of insurance; constructive 

discharge and intentional and negligent infliction of 

emotional distress. A three-day jury trial commenced on June 

29, 1987 and the jury returned a verdict in favor of Lane on 

the grounds of conversion only on July 1, 1987. The jury 

granted damages in the amount of $617.42 plus interest for an 

award totalling $2,857 plus $25,000 punitive damages. Dunkle 

motioned for a directed verdict at the close of Lane's case 

and motioned for judgment notwithstanding the verdict at the 

end of trial. The District Court denied the motion for 

directed*, Gerdict at trial and the motion for judgment not 

withstanding verdict in an order dated August 19, 1987 and it 

is from this order that Dunkle appeals. 

Dunkle initially argues Lane failed to prove conversion 

because she did not prove she was legally entitled to the 

proceeds of the commission checks after April 1, 1985. Lane 

testified that she was employed full time as a bookkeeper at 

a different business after April 1, 1985 and that she did not 

sell a policy after this date. Dunkle claims the terms of 
the Independent Agent contract Lane signed control. This 

contract, in paragraph 5, specifically provides: 

The deferred and renewal commissions set 

forth in the Commission Schedule shall be 

payable on the 20th of the month 

succeeding the month in which the premium 

is received by the Company provided that 

the Agent is representing the Company on 

that date, and it is expressly agreed by 

the Agent and the Company that such 

deferred and renewal commissions are 

non-vested and entitlement thereto by the 

Agent automatically terminates with the 

termination of this Contract . . . 

Because Lane admitted she was not an active agent as of 

April 20, 1985, and because this clause specifically requires 

the agent represent the company, Dunkle argues she had no 

"ownership" interest in the commission checks and could not 

establish conversion. 

Conversion requires ownership of property, a right of 

possession, and unauthorized dominion over the property by 

another resulting in damages. Farmers State Bank v. Imperial 

Cattle Co. (Mont. 1985), 708 P.2d 223, 227, 42 St.Rep. 1419, 

1424; Gebhardt v. D.A. Davidson & Co. (1983), 203 Mont. 384, 

389, 661 P.2d 855, 858. See also, 18 Am.Jur.2d conversion, 

5 2, pp. 146-147 (1985). 

The evidence presented in this case shows the jury was 

presented with sufficient evidence to determine Dunkle 

committed conversion. The three commission checks were 

issued by Globe and made payable to Debra Lane. These checks 

were regular renewal commission checks that the agent, Lane, 

was entitled to upon renewal of policies earlier sold by her. 

The jury could therefore find Lane had a property ownership 

interest in the checks. 
In addition to paragraph 5 set forth above, Globe 

Independent Agent contracts included, in paragraph 11, the 

following statement in regard to termination: 

This contract may be cancelled by either 

party upon the written notice to the last 

known address of the other party - . . . (~mphasis added.) 

Lane received Dunkle's written notice on June 28, 1985. 

Dunkle also informed the State Insurance Commissioner that 

Lane was terminated June 28, 1985. This further supports a 

jury finding that Lane had an ownership interest in the 

checks if issued prior to the termination letter. 

Additionally, Helen Clark, who was the secretary in charge of 

disbursing the checks to all the agents testified that 

"[flrom when they went to work until I issued the termination 

sheet, I always considered that the agent was still with 

Globe. I' 

Dunkle testified to and admitted in the Agreed 

Statement of Facts that he forged Lane's endorsement on the 

checks and that he cashed these checks without Lane's 

knowledge. Dunkle did not inform Lane that he had the money. 

The jury could find by these facts that Dunkle exercised 

unauthorized dominion over the money resulting in damages to 

Lane. 

The standard we use in reviewing denials of motions for 

directed verdicts only requires substantial evidence in the 

record supporting the finding of the jury. Gunnels v. Hoyt 

(Mont. 1981), 633 P.2d 1187, 38 St.Rep. 1492. This is the 

same standard used to determine sufficient evidence to 

support the jury's verdict on a motion notwithstanding the 

verdict. "We review the evidence in a light most favorable 

to the prevailing party. We will reverse only where there is 

a lack of substantial evidence to support the judgment 
... " Funk v. Robbin (Mont. 1984), 689 P.2d 1215, 1218, 41 

St.Rep. 1848, 1850; see also, Kleinsasser v. Superior Derrick 

Service, Inc. (Mont. 1985), 708 P.2d 568, 569, 42 St.Rep. 

1662, 1664. In Kleinsasser, supra, 708 P.2d at 570, we 

stated: 

The "substantial evidence" test variously 

expressed allows reversal only if there 

is a complete absence of probative facts 

to support the verdict [Griffel v. Faust 

(Mont. 1983), 668 P.2d 247, 249, 40 

St.Rep. 1370, 1372), . . . or if there is 

a complete absence of any credible 

evidence in support of the verdict 

(Barmeyer v. Montana Power Company (Mont. 

1983), 657 P.2d 594, 597, 40 St.Rep. 23, 

25). 

Reversal on the grounds expressed by Dunkle cannot be 

granted due to the substantial, credible evidence presented 

upon which the jury could base its verdict in regard to 

conversion. The District Court did not err in denying 

Dunkle's motion for a directed verdict or motion for 

judgment notwithstanding the verdict. 

Dunkle next contends the District Court erred in 

accepting the jury's award of punitive damages because the 

claim should be considered one for breach of contract. 

Dunkle contends since Lane "elected to affirm the express 

contract by suing for all commissions, monies and earnings 

stolen and/or wrongfully withheld and any penalty that may be 

allowed by law for breach of contract" that she should not be 

entitled to punitive damages. Section 27-1-220, MCA (1987) . The trial court appropriately instructed the jury on 

punitive damages and Dunkle failed to object. It is 

uncontroverted that a party cannot raise an issue on appeal 

that was not objected to at the trial level as Lane 

appropriately points out. Clark v. orris (Mont. 1987), 734 

P.2d 182, 188, 44 St.Rep. 444, 450. The jury was instructed 
on conversion. The instruction allowed the jury to grant 

actual damages. 

An additional instruction stated the jury could grant 

punitive damages if it found actual damage was suffered and 

oppression or malice was present. The jury received 

definitions of malice and oppression in the instructions. 

Section 27-1-221, MCA (1985) , provides for punitive damages 

when malice or oppression are found by the jury just as 

instructed in this case. Bollinger v. Hollingsworth (Mont. 

1987), 739 P.2d 962, 964, 45 St.Rep. 1228, 1231. The 

submitted instructions were based on 5 27-1-221, MCA, that 

allowed presumed malice. In 1987, the Legislature amended 

this statute to allow punitives upon proof, by clear and 

convincing evidence, of actual malice or oppression. Section 

27-1-221, MCA (1987). However, this change is immaterial in 

this case. 

The jury was properly instructed as to the awarding of 

punitive damages and could infer either malice or oppression 

by Dunkle. Dunkle's breach of contract argument on this 

appeal is not supported by the evidence nor the jury verdict. 

Dunkle was found liable for commission of conversion. It is 

hornbook law that conversion is a tort. Prosser and Keeton 

on Torts, 5 15, pp. 89-107, (1984). 

We have held that punitive damages may be awarded where 

the nature of the wrong complained of and injury inflicted 

goes beyond merely violating the rights of another and is 

found to be willful and malicious. Safeco Ins. Co. v. 

Ellinghouse (Mont. 1986), 725 P.2d 217, 227, 43 St.Rep. 1689, 

1701. The evidence shows Dunkle exercised a habit of 

depriving agents of checks specifically drafted in the 

agent's name. The jury could find this was an abuse of 

authority. In Dunfee v. Baskins-Robbins, Inc. (Mont. 1986) , 

720 P.2d 1148, 1155, 43 St.Rep. 964, 972, this Court looked 
with favor upon an instruction that stated oppression was 

defined as "an act of . . . excessive use of authorit~r" 

stating "an act is oppressively done if done in a way or 

manner which violates the right of another person with 

unnecessary harshness or severity as by misuse or abuse of 

authority or power." The award of punitive damages, $25,000, 

does not appear to be "grossly disproportionate" to his acts 

and therefore the result of passion or prejudice. Safeco, 

supra, 725 P.2d at 227. 

For the foregoing reasons, the District Court did not 

err in denving Dunkle's motion for a directed verdict and 

judgment notwithstanding the ~rerdi-ct. 

Affirmed. 

We concur: 

Justices 4