McCausland v. Tide-Mayflower Moving and Storage, TIDE-MAYFLOWER

• Citation: 499 So.2d 1378
• Decision Date: 14 November 1986
• Docket Number: TIDE-MAYFLOWER
• Parties: 2 UCC Rep.Serv.2d 1642 John M. McCAUSLAND and Shirley C. McCausland v.MOVING AND STORAGE, et al. 85-395.
• Court: Supreme Court of Alabama

Page 1378

499 So.2d 1378 2 UCC Rep.Serv.2d 1642 John M. McCAUSLAND and Shirley C. McCausland
v.
TIDE-MAYFLOWER MOVING AND STORAGE, et al. 85-395. Supreme Court of Alabama. Nov. 14, 1986.

Page 1379

Dennis J. Knizley of Alexander and Knizley, Mobile, for appellants.

Henry A. Callaway III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.

BEATTY, Justice.

The plaintiffs, John and Shirley McCausland, filed a complaint in the Mobile Circuit Court against the defendants, Tide-Mayflower Moving and Storage ("Tide") and Aero Mayflower Transit Company ("Aero") in October 1985. The complaint alleged causes of action in detinue, conversion, breach of contract, and fraud. In September 1985, Aero and Tide moved for summary judgment on all counts. This motion was granted in November 1985. The McCauslands appeal. We affirm in part, reverse in part, and remand.

The standard for summary judgment is well-settled and was stated in Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So.2d 112, 114 (Ala.1983), as follows:

"The standard for summary judgment as set forth in Rule 56, Ala.R.Civ.P., has two basic parts: the trial court must determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law. Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Furthermore, this standard is conjunctive. Houston v. McClure, supra; McGuire v. Wilson, 372 So.2d 1297 (Ala.1979). The burden is upon the moving party to clearly show that there is no genuine issue of a material fact, and all reasonable doubts concerning the genuine issue of material

Page 1380

fact must be resolved against the moving party. Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981); Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981). The burden is further increased by the scintilla evidence rule, which requires that summary judgment not be granted if there is a scintilla of evidence supporting the position of the non-movant. Fountain v. Phillips, supra; Browning v. Birmingham News, 348 So.2d 455 (Ala.1978)."

Viewing the facts in the light most favorable to the McCauslands, we find that the record shows the following: In July 1981, John McCausland contracted with Aero to move his household goods by truck from Coral Gables, Florida, to Mobile, Alabama. A bill of lading was issued to McCausland, and the goods were shipped to Mobile. When the goods arrived at their destination, however, the McCauslands, who were apparently experiencing financial difficulties, failed to pay the charges that were due. The Aero driver refused to deliver the goods to the McCauslands and, after waiting for several days, he deposited the goods with Aero's local agent, Tide. Shortly thereafter, the McCauslands went to Florence, Kentucky, to live with Mrs. McCausland's mother. Although the parties corresponded regarding the transit charges, the charges were never paid. In June 1982, Tide was instructed by Aero to sell the McCauslands' property at auction. On June 8, 1982, Sandra Hall, the owner and manager of Tide, sent a letter, by certified mail, to the McCauslands in care of Mrs. McCausland's mother in Kentucky. This letter read, in pertinent part, as follows:

"Due to nonpayment of storage charges, relating to household goods and personal effects we have stored for you, we are hereby serving notice, in accordance with Code of Alabama 1940, Title 2, Section 538, of our intention to exercise our lien for these charges. Attached is an itemized statement of our claim showing the amount due at this time. Charges are for our service in connection with the household goods and personal effects which we have stored for you as shown on the inventory copy of which has been furnished you.

"We are hereby demanding that our claim for $3,946.53 and any further claims as shall accrue, shall be paid on or before June 14, 1982.

"In the event our claim is not paid within the above specified time, the goods will be advertised for sale and sold by auction at our warehouse on June 16, 1982."

Hall also placed a classified advertisement entitled "Notice of Sale" in the June 13, 1982, edition of the Mobile Press Register. This advertisement stated that the used household goods and personal belongings of the McCauslands would be sold at public outcry to the highest bidder on June 16, 1982, at Tide's offices to pay the lien held on those goods. The auctioneering firm of Bunch & Bunch was hired to handle the auction. Bunch & Bunch placed two of its own advertisements in the newspaper, which ran on June 13 and 15, 1982.

The goods were sold at auction on June 16, 1982. The proceeds from this sale were applied to the outstanding balance on the McCauslands' shipping charges, storage charges for the period July 14, 1981, to June 16, 1982, the cost of advertising the sale and notifying the McCauslands, and the labor charges which Tide incurred in moving the McCauslands' goods out to the auction platform.

Although the testimony indicated that the certified letter set out above did reach the McCauslands in Kentucky shortly after it was sent on June 8, 1982, the exact date of receipt is not clear. However, it is clear that the letter was not opened until at least a week after its receipt. After reading the letter, John McCausland called Tide and learned that his furniture had been sold. This action followed.

The McCauslands argue that summary judgment as to their first three counts (detinue, conversion, and breach of an agreement to maintain the McCauslands' property until it was reclaimed) was improper

Page 1381

because a genuine issue of material fact existed. Specifically, they argue that, because their goods were stored subsequent to shipment, a material issue of fact exists as to whether Tide and Aero, through Tide's agency, had become warehousemen. If they had become warehousemen, the McCauslands' argument continues, then the lien on their goods could only be exercised pursuant to §§ 7-7-209, -210, Code of 1975. These sections create and set out the statutory requirements for the enforcement of a warehouseman's lien.

For their part, Tide and Aero argue that the goods were "stored" only because of the McCauslands' failure to pay the shipping charges due. This storage, they argue, was only incidental to the enforcement of their carrier's lien pursuant to §§ 7-7-307, -308, Code of 1975.

We cannot accept the McCauslands' argument that the storage of their household goods subsequent to shipment, in and of itself, creates a genuine issue of fact which would make the granting of a summary judgment improper. This is because it is undisputed that no warehouse receipt covering the goods was ever issued. Even if it could be determined that either Tide or Aero had been a "warehouseman" under the definition provided in § 7-7-102(h), on the facts of the present case, that issue is simply not material.

Section 7-7-209(1) provides in part:

"A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance,...