Global Federal Credit Union v. Walker

• Citation: 679 So.2d 1075
• Parties: GLOBAL FEDERAL CREDIT UNION v. Dayle WALKER, d/b/a Bud's Truck and Auto Repair, and S.J. Suttles, d/b/a "SS" Auto Sales. 2940776.
• Decision Date: 02 February 1996
• Court: Alabama Court of Civil Appeals

Page 1075

679 So.2d 1075

GLOBAL FEDERAL CREDIT UNION v. Dayle WALKER, d/b/a Bud's Truck and Auto Repair, and S.J. Suttles, d/b/a "SS" Auto Sales.

2940776.

Court of Civil Appeals of Alabama.

Feb. 2, 1996.

Rehearing Denied March 15, 1996.

Certiorari Denied June 21, 1996

Alabama Supreme Court 1951026.

J. Brian Slaughter, Tammy L. Frazier and Patrick W. Richardson of Bell Richardson, P.A., Huntsville, for Appellant.

Elizabeth J. Hubertz and Pamela L. Sumners, Birmingham, for S.J. Suttles.

ROBERTSON, Presiding Judge.

On August 2, 1994, Global Federal Credit Union filed a complaint in the Madison County Circuit Court against Dayle Walker, d/b/a Bud's Truck and Auto Repair, and S.J. Suttles, d/b/a "SS" Auto Sales. Global alleged that on September 14, 1990, it had entered into a purchase money security agreement with Ronnie E. Patrick for the purchase of a 1990 Plymouth Laser automobile (Plymouth); that the Plymouth had been titled in Texas; and that the Texas title documents showed Global as the first lienholder. Global also alleged that in July 1993 Patrick was in Huntsville, Alabama; that the Plymouth became disabled and was towed to Walker's repair shop; that Patrick never returned to pick up the Plymouth; and that Walker made repairs to the Plymouth totalling $572.35. Global further alleged that in September and October 1993 Walker published a notice in the Huntsville News that the Plymouth was to be sold on November 6, 1993, pursuant to the Abandoned Motor Vehicles Act, § 32-13-1 et seq., Ala.Code 1975, and that, without complying with the notice requirements of § 32-13-4(a), Ala.Code 1975, Walker converted the Plymouth by selling it to Suttles on November 6, 1993.

On September 8, 1994, Suttles answered Global's complaint and asserted that he was an innocent purchaser for value, that his possession of the Plymouth was lawful, and that his possession could not constitute conversion. On October 3, 1994, Suttles filed a cross-claim against Walker, seeking indemnification and asserting claims of negligence, breach of warranty, and fraud. On February 6, 1995, Walker answered Suttles's cross-claim.

The trial court tried the case without a jury; the parties stipulated, in writing, to certain facts and presented the testimony of three witnesses. The parties stipulated to the following facts:

"[Patrick] ... signed a Credit Agreement with [Global], dated June 26, 1990....

"On September 11, 1990, [Patrick] applied for a loan from Global while stationed at the U.S. Army base in Vicenza, Italy for the purpose of purchasing the 1990 Plymouth Laser automobile which is the subject of this action....

"Global ... approved the automobile loan in the amount of $14,995.00, to be secured by a security interest in the Plymouth, and paid that amount toward the purchase of the Plymouth by [Patrick]....

"[Patrick] signed a Security Agreement dated September 14, 1990, granting Global a security interest in the Plymouth....

"[Patrick] was subsequently transferred to Fort Hood, Texas, and applied February 19, 1992, for Texas Title Registration and a Texas Certificate of Title on the Plymouth listing Global as the first lienholder. The application signed by [Patrick] shows that Texas license No. GMX04T was issued for the Plymouth....

"On March 19, 1992, a Texas Certificate of Title was issued on the Plymouth showing Ronnie Patrick as owner and Global as first lienholder....

"In July of 1993, the Plymouth was towed to Bud's Truck and Auto [R]epair in Huntsville, Alabama, for repair and repairs were made upon it at a total cost of $572.35, including a $25.00 towing charge. At the time of said repairs, the vehicle bore Texas license GMX04T, and had a 'speedometer' (odometer) reading of 44,990, as shown on the Repair Order and Bill....

"[Patrick] failed to pay the repair bill and the Plymouth remained at Bud's Truck and Auto Repair until July 27, 1993, when it was towed to storage, as reflected on the Repair Order and Bill....

"The Plymouth remained in the storage yard of Davis Wrecker Service until November 6, 1993. Fees totaling $440.00 were charged for the storage of the Plymouth....

"[Walker], who was and is [the] owner of Bud's Truck and Auto Repair, advertised an auction of the Plymouth under the Alabama Abandoned [Motor] Vehicle[s] Act to be held November 6, 1993, in the Huntsville News, a newspaper published in Huntsville, Alabama.... [Walker] gave no other notice and Global had no notice of the sale.

"[Walker] conducted a sale of the Plymouth on November 6, 1993, and thereupon sold it to [Suttles] for $2,075.00. Out of the $2,075.00 sale price, [Walker] took her repair charges of $572.35, towing charges of $25.00, storage charges of $440.00, publication expense of $20.00, and $35.00 to "Record Sale" and she paid to the Clerk of this Court the remaining $982.65, which the Clerk continues to hold, subject to Order of the Court. [Walker] reported the sale to this Court....

"[Suttles] subsequently resold the Plymouth to one Ryan A. Milton on February 18, 1994, for $6,600.00 cash....

"....

"A balance of $7,056.28 of the principal loan by Global to [Patrick] secured by first lien on the Plymouth under the Security Agreement, ... plus interest thereon of $591.75 and thereafter at 10.5% per annum remains due and unpaid and has been in default since January 1, 1994....

"The secured debt has become in default and the law firm of Bell Richardson, P.A., has been engaged to collect same and enforce the rights of Global. Said attorneys have been paid fees totalling $4,283.88 for their services and expenses advanced and incurred in this matter...."

On April 19, 1995, the trial court entered a judgment, stating, in pertinent part:

"(1) That as to the complaint of [Global] against [Walker and Suttles] in this action, judgment be and is hereby entered in favor of [Walker and Suttles].

"(2) That as to the cross-claim of [Suttles] against [Walker] judgment be and is hereby entered in favor of [Walker]."

The trial court also taxed costs against Global.

Global appeals, contending that Walker converted the Plymouth because, it says, Walker failed to comply with § 32-13-4(a), Ala.Code 1975, by not giving Global written notice at least 30 days before the November 6, 1993, auction of the Plymouth. Global also contends that Suttles converted the Plymouth when he purchased it at auction from Walker.

"To constitute conversion, there must be a wrongful taking, an illegal assumption of ownership, or an illegal use or misuse of another's property. Gillis v. Benefit Trust Life Ins. Co., 601 So.2d 951 (Ala.1992)." Gray v. Liberty Nat. Life Ins. Co., 623 So.2d 1156, 1160 (Ala.1993).

An abandoned motor vehicle is defined in § 32-13-1(1) and (2), Ala.Code 1975. Section 32-13-1(1), Ala.Code 1975, states that an abandoned motor vehicle, is:

"[a vehicle] which has been left by the owner, or some person acting for the owner, with an automobile dealer, repairman, or wrecker service for repair ... and has not been called for by [the] owner ... within a period of 60 days after the time agreed upon ... or within 60 days after the completion of necessary repairs."

Section 32-13-3 provides, in pertinent part:

"Any ... repair service owner, ... who shall have an abandoned motor vehicle on his property, may sell the same at public auction. Notice of...