Giles v. FIRST VIRGINIA CREDIT SERVICES

• Citation: 560 S.E.2d 557,149 NC App. 89
• Decision Date: 05 March 2002
• Docket Number: No. COA00-1252.,COA00-1252.
• Court: Court of Appeal of North Carolina (US)
• Parties: Richard GILES and wife, Joann Giles, Plaintiff-Appellants, v. FIRST VIRGINIA CREDIT SERVICES, INC., and Professional Auto Recovery, Inc., Defendant-Appellees.

560 S.E.2d 557

149 NC App. 89

Richard GILES and wife, Joann Giles, Plaintiff-Appellants, v. FIRST VIRGINIA CREDIT SERVICES, INC., and Professional Auto Recovery, Inc., Defendant-Appellees.

No. COA00-1252.

Court of Appeals of North Carolina.

March 5, 2002.

Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by E. Fielding Clark, II, Hickory, for plaintiff-appellants.

Kirschbaum, Nanney, Brown & Keenan, P.A., by Pamela P. Keenan and Stephen B. Brown, Raleigh, for defendant-appellee First Virginia Credit Services, Inc.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Sara H. Young, Charlotte, for defendant-appellee Professional Auto Recovery, Inc.

McGEE, Judge.

Richard Giles and Joann Giles (plaintiffs) appeal the trial court's order granting First Virginia Credit Services, Inc.'s (First Virginia) motion for summary judgment in part.

Plaintiffs filed a complaint against defendants First Virginia and Professional Auto Recovery, Inc. (Professional Auto Recovery) for wrongful repossession of an automobile. Plaintiffs alleged in an amended complaint that: (1) First Virginia and Professional Auto Recovery wrongfully converted and/or repossessed the automobile and plaintiffs' personal property located within the automobile; (2) plaintiffs made a payment on the account which First Virginia accepted immediately prior to First Virginia's repossession of the automobile and which First Virginia subsequently cashed and applied to plaintiffs' account after the repossession; (3) removal of the automobile constituted breach of the peace in violation of N.C. Gen.Stat. § 25-9-503; (4) N.C. Gen.Stat. § 25-9-503 is unconstitutional; and (5) First Virginia was negligent in hiring Professional Auto Recovery and committed unfair or deceptive trade practices entitling plaintiffs to treble damages.

First Virginia filed an answer stating the automobile was repossessed due to the default of Joann Giles in making the payments to First Virginia on a loan secured by the automobile. First Virginia stated that N.C. Gen.Stat. § 25-9-503 permitted a secured lender to peaceably repossess its collateral upon default by a debtor and that such repossession could not, as a matter of law, constitute conversion of the collateral or an unfair or deceptive trade practice. First Virginia moved to dismiss plaintiffs' complaint for failure to state a claim pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6).

Joann Giles entered into an installment sale contract on or about 18 January 1997 for the purchase of an automobile. The contract was assigned to First Virginia, which obtained a senior perfected purchase money security interest in the automobile. The terms of the contract required Joann Giles to make sixty regular monthly payments to First Virginia. The contract stated that Joann Giles' failure to make any payment due under the contract within ten days after its due date would be a default. The contract contained an additional provision agreed to by Joann Giles that stated:

If I am in default, you may consider all my remaining payments to be due and payable, without giving me notice. I agree that your rights of possession will be greater than mine. I will deliver the property to you at your request, or you may use lawful means to take it yourself without notice or other legal action....

...

If you excuse one default by me, that will not excuse later defaults.

During the early morning hours of 27 June 1999, Professional Auto Recovery, at the request of First Virginia, repossessed the locked automobile from plaintiffs' front driveway. According to First Virginia, the account of Joann Giles was in arrears for payments due on 2 May 1999 and 2 June 1999, and pursuant to the terms of the contract, repossession was permitted.

In an affidavit filed by plaintiffs in opposition to First Virginia's motion for summary judgment, plaintiffs' neighbor, Glenn A. Mosteller (Mr. Mosteller), stated that he was awakened around 4:00 a.m.

by the running of a loud diesel truck engine on the road outside my house. Evidentially [sic] the truck was stopped because I lay in bed for a while and did not get up. I then became concerned and went to the window to see what was going on. At this time I saw a large rollback diesel truck with a little pickup truck on the truck bed behind it. The truck only had its parking lights on. The truck ... started going toward the Giles' yard. It still only had its parking lights on. About that time, a man jumped out of the truck and ran up the Giles' driveway. Their car was parked up at their house. Then the car came flying out back down the driveway making a loud noise and started screeching off.... At about the same time, the rollback also pulled off real fast making a real loud diesel noise and went down [the road].... I got to the phone, called the Giles and told them someone was stealing their car.... My lights were on ... and the Giles' lights were on and that portion of our neighborhood had woken up. Richard Giles came out in his yard and we hollared a few words back and forth and I jumped in my truck ... to try to get the police. About 5 minutes later a police car came up and pulled into the Giles' yard. Then another police car came then a Sheriff's Deputy car came. Then another police car came.... There was a great commotion going on out in the street and in our yard all to the disturbance of the quietness and tranquility of our neighborhood.... It scared me and it scared the Giles.

Joann Giles stated in a deposition that she was awakened by Mr. Mosteller's telephone call in which he told her that someone was stealing her car. She stated she ran to see if the automobile was parked outside and confirmed that it was gone. Joann Giles testified she woke up her husband and gave him the telephone; he ran outside into the yard and heard Mr. Mosteller "hollering" at him from across the street. Plaintiffs testified in their depositions that neither of them saw the car being repossessed but were only awakened by their neighbor after the automobile was gone. During the actual repossession, no contact was made between Professional Auto Recovery and plaintiffs, nor between Professional Auto Recovery and Mr. Mosteller.

First Virginia filed a motion for summary judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 56. Plaintiffs filed a motion to amend their complaint pursuant to N.C. Gen.Stat. § 1A-1, Rule 15. These motions were heard by the trial court on 17 May 2000. In an order dated 15 June 2000, the trial court: (1) granted plaintiffs' motion to amend their complaint; (2) granted First Virginia's motion for summary judgment in part, stating there was no genuine issue as to any material fact as to the conversion or repossession of the motor vehicle; (3) denied First Virginia's motion for summary judgment in part, concluding that there were genuine issues of material fact as to the reasonableness of the taking into possession or conversion of plaintiffs' personal property located within the automobile and related damages; (4) declined plaintiffs' request to declare N.C. Gen. Stat. § 25-9-503 unconstitutional; and (5) ruled on other motions not at issue in this appeal. The trial court certified in an order filed 6 July 2000 that its decisions in the 15 June 2000 order constituted a final judgment as to some of plaintiffs' claims and found the order was immediately appealable pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b). Plaintiffs appeal.

I.

We must first determine whether plaintiffs' appeal is properly before this Court in that the trial court's order does not resolve all issues among the parties and is therefore interlocutory. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). See also N.C. Gen.Stat. § 1A-1, Rule 54(a) (1999). The purpose of this rule is "to prevent fragmentary, premature and unnecessary appeals" by allowing the trial court to determine all the issues in the case before it is presented to the appellate courts for review. Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978). There are, however, two circumstances in which a party may appeal an interlocutory order. First, an immediate appeal may lie if the order of the trial court is final as to some but not all of the claims or parties, and the trial court certifies the case for immediate appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b) (1999). Second, an appeal is permitted where the order appealed from affects a substantial right of the parties. N.C. Gen.Stat. § 7A-27(d)(1) (1999) and N.C. Gen.Stat. § 1-277 (1999). See also Davidson v. Knauff Ins. Agency, 93 N.C.App. 20, 24, 376 S.E.2d 488, 490-91, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).

A Rule 54(b) certification is reviewable by our Court on appeal because a "trial court's denomination of its decree [as] `a final... judgment does not make it so,' if it is not such a judgment." First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C.App. 242, 247, 507 S.E.2d 56, 60 (1998) (quoting Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979)). Although the trial court's determination that there is no just reason for delay of an appeal is accorded great deference, it does not bind our appellate courts because "ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court." Estrada v. Jaques, 70 N.C.App. 627, 640, 321 S.E.2d 240, 249 (1984). See also DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583, 500 S.E.2d 666 (1998).

In this case, the trial court granted partial summary judgment for First Virginia on the issue of wrongful conversion and/or repossession of plaintiffs' automobile, and refused plaintiffs' request to declare N.C. Gen. Stat. §...