NCNB Nat. Bank of North Carolina v. Western Sur. Co.

• Decision Date: 16 February 1988
• Docket Number: No. 8728SC233,8728SC233
• Court: North Carolina Court of Appeals
• Parties: NCNB NATIONAL BANK OF NORTH CAROLINA v. WESTERN SURETY COMPANY.

Page 675

364 S.E.2d 675

88 N.C.App. 705

NCNB NATIONAL BANK OF NORTH CAROLINA v. WESTERN SURETY COMPANY.

No. 8728SC233.

Court of Appeals of North Carolina.

Feb. 16, 1988.

Morris, Golding, Phillips & Cloninger by William C. Morris, Jr., Asheville, for defendant-appellant.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Russell P. Brannon and Michelle Rippon, Asheville, for plaintiff-appellee.

JOHNSON, Judge.

Defendant contends the trial court erred in denying its motion for summary judgment and in granting plaintiff's motion for summary judgment. We disagree. "The judge's role in ruling on a motion for summary judgment is to determine whether any material issues of fact exist that require trial. It necessarily follows that when the only issues to be decided in the case are issues of law, summary judgment is proper." Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C.App. 1, 3-4, 249 S.E.2d 727, 729 (1978). The burden is on the movant to show the lack of any triable issue of fact. North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976).

Defendant contends that plaintiff is not entitled to sue on the bond because (1) plaintiff is not subrogated to any claim against defendant, (2) plaintiff is a volunteer with no interests assigned to it and (3) Truck City did not violate Article 12 of Chapter 20 of N.C.G.S. and the bond is only liable for such violations.

Plaintiff contends that (1) it is a purchaser within the meaning of N.C.G.S. 20-288(e), thereby entitling plaintiff to recover against defendant surety on the bonds, (2) it is not a volunteer to the extent that it would be precluded from pursuing its subrogation rights against defendant, (3) public policy favors recovery pursuant to N.C.G.S. 20-288 on a theory of subrogation, and (4) fraud and fraudulent representation may be the basis of a claim under N.C.G.S. 20-288(e). The bond issued by Western is almost verbatim the langugage of bonds construed by this Court in Taylor v. Johnson, 84 N.C.App. 116, 351 S.E.2d 831 (1987), and Triplett v. James, 45 N.C.App. 96, 262 S.E.2d 374, disc. rev. denied, 300 N.C. 202, 269 S.E.2d 621 (1980), wherein we determined that such bonds were issued to comply with G.S. 20-288(e).

G.S. 20-288(e) provides in pertinent part:

Each applicant approved by the Division for license as a motor vehicle dealer, ... shall furnish a corporate surety bond, ... Any purchaser of a motor vehicle who shall have suffered any loss or damage by any act of a motor vehicle dealer that constitutes a violation of this Article shall have the right to institute an action to recover against ... the surety. (Emphasis added).

It is clear that the eight customers who purchased the cars are "purchasers" within the meaning of G.S. 20-288(e) and as such had a right to sue the automobile dealer on the bonds issued by defendant Western Surety.

In exchange for that right, the purchasers elected to obtain the title to the automobiles by assigning all their rights to sue the automobile dealer and surety to plaintiff NCNB. This assignment of rights was obtained pursuant to a business contract entered into by the parties involved, NCNB and the purchasers.

Choses in action are assignable. High Point Casket Co. v. Wheeler, 182 N.C. 459, 109 S.E. 378 (1921). An assignment operates as a valid transfer of title of a chose in action, and an assignee becomes a real party in interest who may maintain an action thereon in his own name and acquire such right, title, and interest as the assignor had. Gillespie v. DeWitt, 53 N.C.App. 252, 280 S.E.2d 736, disc. rev. denied,304 N.C. 390, 285 S.E.2d 832 (1981). Therefore, NCNB, as assignee, obtained all the rights, claims, and title of the assignor.

In addition to obtaining an assignment of all rights, claims, and title, NCNB paid off the liens on the vehicles and pursuant to the terms of the contract, was to be entitled to subrogation of all claims that the assignors had against the defendant.

Defendant contends that plaintiff is a volunteer to the extent that it would be precluded from pursuing any subrogation rights. We disagree. "[A] mere volunteer or intermeddler who, having no interest to protect and without any legal or moral obligation, pays the debt of another, is not entitled to subrogation without an agreement to this effect, or an assignment of the debt ..." (Emphasis added). Journal Publishing Co. v. Barber, 165 N.C. 478, 483, 81 S.E. 694, 697 (1914). We believe the facts give rise to the doctrine of "conventional subrogation." Conventional subrogation arises from an express agreement of the parties as opposed to equitable subrogation which rests not on contract but on principles of equity. Publishing Co., supra; Powell v. Wake Water Co., 171 N.C. 290, 88 S.E. 426 (1916). The record establishes that NCNB entered into agreements with each purchaser respectively, wherein the agreements all state in part:

... IT IS AGREED BETWEEN THE PARTIES [NCNB & Purchasers] ...

1. NCNB herewith agrees to pay the Prior Liens or hold the Customer harmless from the same.

* * *

5. Each Customer herewith assigns unto NCNB all of his right, claim and title and interest in and to its claim against the Dealer and its bonding company [Western Surety] arising out of the sale of the Vehicle with a prior encumbrance of record which the Dealer has not cleared and the Dealer's failure to deliver good title to the Customer. With respect to such assignment each Customer further

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c. Agrees that by performing under paeragraph [sic] 1, NCNB is subrogated to all of Customer's claims arising out of the Prior Lien on the Vehicle against Dealer.

Therefore, pursuant to this express...