Drummond v. Cordell

• Decision Date: 05 March 1985
• Docket Number: No. 8430SC598,8430SC598
• Citation: 73 N.C.App. 438,326 S.E.2d 292
• Parties: Patricia McLean DRUMMOND v. Earl CORDELL, d/b/a Cordell's Body Shop; and Melody M. Cordell.
• Court: North Carolina Court of Appeals

Page 292

326 S.E.2d 292

73 N.C.App. 438

Patricia McLean DRUMMOND v. Earl CORDELL, d/b/a Cordell's Body Shop; and Melody M. Cordell.

No. 8430SC598.

Court of Appeals of North Carolina.

March 5, 1985.

McLean & Dickson by Russell L. McLean, III, and Robert L. Ward, Waynesville, for plaintiff-appellee.

Roberts, Cogburn, McClure & Williams by Max O. Cogburn and Issac N. Northup, Jr., Asheville, for defendants-appellants.

HEDRICK, Chief Judge.

The opinion of this Court filed 15 January 1985 is hereby superseded by the following opinion.

We hold the trial court erred in concluding that the small claims judgment was void. That judgment could not be collaterally attacked, and it is proper on its face. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26 (1944). Since the small claims judgment was proper, it authorized defendant-lienor to sell the automobile pursuant to G.S. 44A-4. Because the lienor had authority to sell the vehicle to collect storage charges, plaintiff has no claim for conversion, since conversion is "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights." Gallimore v. Sink, 27 N.C.App. 65, 67, 218 S.E.2d 181, 183 (1975) (citations omitted) (emphasis added). Furthermore, since the small claims judgment is for defendant Earl Cordell's storage bill, Mr. Cordell has no counterclaim in this action for storage.

While we have held that the trial court erred in submitting the issues of conversion and defendant's counterclaim for storage costs to the jury, it does not follow that the trial court should have directed a verdict for the defendant in the present action. It is the duty of the trial judge to submit to the jury such issues as will resolve all factual issues raised by the evidence given in the case. Wilkinson v. Weyerhaeuser Corp., 67 N.C.App. 154, 312 S.E.2d 531, disc. rev. denied, 311 N.C. 310, 317 S.E.2d 909 (1984). "The court should properly charge the jury on all theories of recovery supported by evidence." Lail v. Woods, 36 N.C.App. 590, 591, 244 S.E.2d 500, 501, disc. rev. denied, 295 N.C. 550, 248 S.E.2d 727 (1978). The evidence in the instant case tends to show that the defendant, Mr. Cordell, sold the automobile under the authority of the small claims judgment, which provided that defendant could enforce his lien "by public sale as provided in N.C.G.S. 44A-4(e)." The evidence given in the case tends to show that defendant did not "cause notice to be mailed to the person having legal title to the property if reasonably ascertainable," as is required by G.S. 44A-4(e)(1)a1, and that defendant did not "advertise the sale by posting a copy of the notice of sale at the courthouse door in the county where the sale is to be held," as is required by G.S. 44A-4(e)(1)b. The evidence also tends to show that only defendant's wife and daughter attended the sale, and that only defendant's daughter, Melody Cordell, bid on the car.

G.S. 44A-4(g) provides:

If the lienor fails to comply substantially with any of the provisions of this section, the lienor shall be liable to the person having legal title to the property or any other party injured by such noncompliance in the sum of one hundred dollars ($100.00), together with a reasonable attorney's fee as awarded by the court. Damages provided by this section shall be in addition to actual damages to which any party is otherwise entitled.

We believe the evidence introduced at trial is sufficient to raise an inference that defendant Earl Cordell failed to substantially comply with the provisions of G.S. 44A-4(e) in conducting the sale. This is a factual issue which can be determined only by the jury. We thus hold the court erred in failing to submit this issue to the jury.

If on remand the jury should find from the evidence and by the greater weight thereof that the defendant failed to substantially comply with the provisions of G.S. 44A-4(e) in conducting the sale, the jury would then be required to determine what amount, if any, "actual damages" plaintiff suffered as a result of defendant's failure to conduct the sale according to G.S. 44A-4(e). The measure of plaintiff's actual damages would be the difference between the fair market value of the automobile at the time of the sale and the amount for which the car was actually sold to defendant Melody Cordell. Since there is no contention that Ms. Cordell was not a "purchaser for value without constructive notice of a defect in the sale," under G.S. 44A-6, the sale will stand and the purchaser, Ms. Cordell, is entitled to possession of and title to the automobile.

If the jury should answer the first issue affirmatively, the court will add to the verdict of actual damages, if any, the statutory penalty of one hundred dollars and reasonable attorney's fees.

We note that defendant must account for the money paid to him by his daughter as a result of the sale of the car in the manner set out in G.S. 44A-5.

The result is: the judgment of the superior court entered 13 January 1984 is vacated and the cause is remanded to that court for a new trial in accordance with this opinion.

Vacated and remanded.

WEBB, J., concurs.

EAGLES, J., dissents.

EAGLES, Judge, dissenting:

I dissent from that portion of the majority opinion that reverses the directed verdict for plaintiff on the issue of liability for substantial non-compliance with the provisions of G.S. Chapter 44A. Plaintiffs admitted non-compliance and no evidence to the contrary was offered. I concur in...