Premier Bank, N.A. v. Mahoney, 18548

• Decision Date: 28 April 1994
• Docket Number: No. 18548,18548
• Citation: 520 N.W.2d 894
• Parties: PREMIER BANK, N.A., Plaintiff and Appellant, v. Robert MAHONEY, Defendant, v. Michael D. MAHONEY, Intervenor and Appellee. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 894

520 N.W.2d 894

PREMIER BANK, N.A., Plaintiff and Appellant, v. Robert MAHONEY, Defendant, v. Michael D. MAHONEY, Intervenor and Appellee.

No. 18548.

Supreme Court of South Dakota.

Considered on Briefs on April 28, 1994.

Decided Aug. 17, 1994.

John M. Wilka of Christenson, Wilka, Haugen and Kirby, Sioux Falls, for plaintiff and appellant.

Rita Allen of Hagen, Wilka and Archer, Sioux Falls, for intervenor and appellee.

WUEST, Justice.

Michael Mahoney's brother, an invalid, entered a hospital and left his pickup on Michael's property. Premier Bank (the Bank) was the lien holder on the pickup. Despite the Bank's lien, Michael acquired an abandoned motor vehicle title to the pickup. In this decision, we hold that the trial court's findings of fact are insufficient to support its conclusion of law that Michael acquired a valid abandoned motor vehicle title to the vehicle. Accordingly, we reverse and remand to the trial court for further proceedings.

FACTS

In 1990, Michael's brother, Robert (Robert), purchased a new Ford pickup in Louisiana. Robert is paralyzed from the neck down and his father served as his driver. Robert and his father moved to South Dakota sometime after the purchase of the pickup.

Robert's father died in January 1993 and Robert entered a hospital for permanent care. After his father's death, Robert's mother phoned and advised the Bank that there would be no further payments on the vehicle and that the Bank should pick it up. Because there was no response to the first phone call, Robert's mother phoned the Bank two weeks later and once again asked that the vehicle be picked up. Again, there was no response to the mother's request.

In the meantime, the pickup was stored in a garage on Michael's property. On April 4, 1993, Michael sent a certified letter to the Bank's loan department. In his letter, Michael claimed the Bank owed him a storage fee for the pickup in the amount of $1,335.00. Michael's letter also advised the Bank that if it did not respond to his letter within thirty days he would file for title to the pickup.

On April 9, Michael sent the Bank a "Notice of Abandoned Motor Vehicle," by certified mail. The notice formally advised the Bank that Robert's vehicle was abandoned on Michael's property, gave Michael's address and phone number and further advised that a storage fee of $15 per day was being assessed. The notice also outlined South Dakota law on abandoned motor vehicles and informed the Bank that, as lien holder, it should send written notice of reclamation within thirty days to Michael and to the State Division of Motor Vehicles. There is no finding of fact that the Bank made any response to this notice. Michael subsequently applied for an abandoned motor vehicle title to the pickup and paid taxes and fees in the amount of $445.05.

After Michael acquired title to the pickup, the Bank brought a claim and delivery action against Robert to recover the vehicle. Michael was allowed to intervene in the action and a hearing was held. After the hearing, the trial court entered findings of fact, conclusions of law and a judgment declaring Michael the owner of the pickup by virtue of the Bank's abandonment of the vehicle. The Bank appeals.

ISSUE

DO THE TRIAL COURT'S FINDINGS OF FACT SUPPORT ITS

CONCLUSIONS OF LAW CONCERNING MICHAEL'S OWNERSHIP

OF THE PICKUP?

The Bank argues that it did make various efforts to recover Robert's pickup that were thwarted by Michael. However, the Bank failed to propose findings of fact and conclusions of law and also failed to file objections to the trial court's findings of fact and conclusions of law. "The failure of an appellant to object to findings of fact and conclusions of law and to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment." Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991). Therefore, our review in this case is limited to determining whether the trial court's findings of fact support its conclusion of law regarding Michael's acquisition of a valid abandoned motor vehicle title to Robert's pickup.

Two statutes outline the procedure to obtain an abandoned motor vehicle title: SDCL 32-36-8 and 32-36-9. At the time of the trial court proceedings on this matter ^*, SDCL 32-36-8 provided in pertinent part:

Within ten days after any abandoned or junk motor vehicle or other scrap metal has been removed, the removal agency shall send written notice by certified mail to the registered owner, if any, of the abandoned or junk motor vehicle or scrap metal and to all readily identifiable lien holders of record at their last known address. The notice shall set forth the date and place of the taking, the year, the make, model and serial number of the abandoned motor vehicle and the place where the vehicle is being held, and shall inform the owner and any lien holders of their right to reclaim the vehicle under Sec. 32-36-9. The notice shall be on a form provided by the department of revenue.

SDCL 32-36-9 provides:

Notwithstanding any statutes to the contrary, title to any abandoned or junk motor vehicle or other scrap metal shall vest in the removal agency after a period of thirty days from the date on which the notice was sent under Sec. 32-36-8 [i.e., notice of removal of abandoned motor vehicle]. The record holder of title or the lienholder may reclaim the motor vehicle or other scrap metal. The lienholder and record holder of title shall notify the department in writing within thirty days of their intent to reclaim the motor vehicle. However, if the record holder of title fails to claim and remove the motor vehicle or other scrap metal within thirty days after mailing of notice, title to the vehicle is irrevocably vested in the removal agency.

Statutes are to be accorded their plain meaning and effect. State v. Ohlmann, 444 N.W.2d 377 (S.D.1989). A plain reading of these two provisions reveals several requirements that must be met before a valid abandoned motor vehicle title can be obtained: first, the motor vehicle must be "abandoned;" second, the motor vehicle must be "removed;" third, the motor vehicle must be removed by a "removal agency;" and, fourth, the removal agency must send written notice of the removal to all readily identifiable lien holders of record. If these requirements are fulfilled, title to the abandoned motor vehicle is irrevocably vested in the "removal agency." SDCL 32-36-9.

Applying the above requirements in the instant case, we first find that there are no findings of fact to support a conclusion of law that Robert's pickup was "abandoned." SDCL 32-36-2(1) defines an "abandoned motor vehicle" as, "any motor vehicle left on a public street or highway or left on private property without the permission of the landowner or tenant[.]" There is no finding of fact in this case that Robert left his pickup on Michael's property without Michael's permission. The trial court did find that, "at the time the Bank failed to pick up the vehicle it became abandoned and was left on private property without the permission of the landowner or the tenant." (emphasis added). However, this finding presupposes that the pickup was already on Michael's property when Michael withdrew his permission for storage of the vehicle. Therefore, the unanswered question is, "who left the pickup on Michael's property in the first place and did that person have Michael's permission to leave the vehicle on his property?" If so, the vehicle was not, "left on private property without the permission of the landowner or tenant," and was not abandoned. SDCL 32-36-2(1).

Second, there are no findings of fact whatsoever that would support a conclusion of law that Robert's pickup was "removed." There is no statutory definition of "removed" as it is used in SDCL 32-36-8. The general meaning of the word "removed" is, "to move (something) from where it is; take away or off ... to move away, as to another residence[.]" Webster's New World Dictionary of the American Language 506 (Rev. ed. 1975). Here, there are no findings of fact that after Robert's pickup was left on Michael's property, the pickup was moved to another place or location.

Third, there are no findings of fact to support a conclusion of law that Robert's pickup was removed by a "removal agency." The term "removal agency" is defined by SDCL 32-36-2(4) as:

any public body, private or nonprofit organization authorized to remove and salvage abandoned and junk motor vehicles and other scrap metals. The removal agency may be authorized by chapter 32-30 to remove vehicles, may be hired or appointed by a public body or may be in the business of removing or salvaging vehicles[.]

Here, there are no findings that Robert's...