Vaseleniuck Engine Dev., LLC. v. & Sabertooth Motorcycles, LLC.

• Decision Date: 20 March 2012
• Docket Number: No. COA11–870.,COA11–870.
• Citation: 727 S.E.2d 308
• Parties: VASELENIUCK ENGINE DEVELOPMENT, LLC., Plaintiff, v. SABERTOOTH MOTORCYCLES, LLC., Defendant. and Sabertooth Motorcycles, LLC., v. Vaseleniuck Engine Development, LLC., and David Vaseleniuck, Individually Defendants.
• Court: North Carolina Court of Appeals

727 S.E.2d 308

VASELENIUCK ENGINE DEVELOPMENT, LLC., Plaintiff,

v.SABERTOOTH MOTORCYCLES, LLC., Defendant.andSabertooth Motorcycles, LLC.,

v.Vaseleniuck Engine Development, LLC., and David Vaseleniuck, Individually Defendants.

No. COA11–870.

Court of Appeals of North Carolina.

March 20, 2012.

Appeal by Plaintiff from orders entered 8 November 2010 by Judge F. Lane Williamson and 4 April 2011 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 26 January 2012.

Knox, Brotherton, Knox & Godfrey, Charlotte, by Allen C. Brotherton, for Plaintiff–Appellant.

Law Offices of J. Neal Rodgers, Charlotte, for Defendant–Third Party Plaintiff Appellee.

BEASLEY, Judge.

Vaseleniuck Engine Development, LLC (Plaintiff) appeals from an 8 November 2010 order and a 4 April 2011 order, both of which grant partial summary judgment to Sabertooth Motorcycles, LLC (Defendant). For the following reasons, we reverse both orders and remand this case for proceedings not inconsistent with this opinion.

On or about 14 September 2006, the parties entered into a contract for services, delivery, and setup of fifty engines for use in custom motorcycles. Defendant paid Plaintiff $87,914 at the time the engines were ordered and another $87,914 when the engines were delivered to Plaintiff's facility. Defendant also paid an additional $55,800.50 for parts upon delivery of the engines. In total, Defendant has paid Plaintiff $231,658.50. However, Defendant still owes Plaintiff a sum of $38,000. Defendant received 15 engines that Plaintiff completed work on, but the rest of the engines remained in Plaintiff's possession.

Plaintiff asserted a possessory lien on the remaining property by service of notice to Defendant under N.C. Gen.Stat. § 44A–1. Defendant responded, and requested a judicial hearing. In spite of this request, Plaintiff sold three of the engines at auction. On 13 January 2010, Plaintiff filed a complaint asserting Defendant was liable for breach of contract and unfair and deceptive trade practices, and claiming that it had the right to retain possession of the remaining 35 engines and other property under a valid claim of lien. On 23 April 2010, Defendant filed an answer and counterclaim asserting breach of contract, violation of lien statute N.C. Gen.Stat. § 44A–4, claim and delivery, conversion/trespass to chattels, and unfair and deceptive trade practices. Defendants also included an allegation of the personal liability of David Vaseleniuck for violation of N.C. Gen.Stat. § 57C–3–30 and an assertion of the right to attorney fees pursuant to N.C. Gen.Stat. § 75–16.1. On 23 August 2010, Defendant filed a motion for partial summary judgment as to its claim against Plaintiff for violation of N.C. Gen.Stat. § 44A–4 et seq. This motion was granted by order filed 8 November 2010 (2010 order).

On 23 February 2011, Defendant filed another motion for partial summary judgment, this time as to the claims of (i) conversion/trespass to chattels, (ii) claim and delivery, (iii) unfair and deceptive trade practice, and (iv) violation of N.C. Gen.Stat. § 57C–3–30. This motion was granted with regard to the conversion/trespass to chattels claim and denied for all other claims by order dated 4 April 2011 (2011 order). From these orders, Plaintiff now appeals.¹

I.

First, we note that Plaintiff's brief raises several issues regarding its compliance with our rules of appellate procedure and the interlocutory nature of the 8 November 2010 and 4 April 2011 orders. These issues were resolved in this Court's denial of Defendant's motion to dismiss. As this Court has held that Plaintiff's appeal from these two orders is properly before us, we turn to address Plaintiff's substantive arguments.

II.

Plaintiff contends that the trial court improperly entered the 2010 order granting summary judgment on Defendant's claim that Plaintiff violated N.C. Gen.Stat. § 44A–4. Specifically, the 2010 order adjudged Plaintiff liable under N.C. Gen.Stat. § 44A–4(g) (2011) which provides that if a lienor “fails to comply substantially with any of the provisions of this section, the lienor shall be liable to the person having legal title to the property[.]” Although the evidence before the trial court was sufficient to raise an inference that Plaintiff failed to substantially comply with N.C. Gen.Stat. § 44A–4 (2011), “[t]his is a factual issue which can be determined only by the jury” and thus “the court erred in failing to submit this issue to the jury.” Drummond v. Cordell, 73 N.C.App. 438, 441, 326 S.E.2d 292, 293 (1985). Accordingly, we reverse the 2010 order.

III.

Plaintiff next contends that the trial court erred in entering the 2011 order granting Defendant's motion for partial summary judgment on the claims of conversion and trespass to chattels. We agree.

N.C. Gen.Stat. § 44A–2(a) (2011) mandates that “[a]ny person who ... alters, repairs, stores,...