Wells v. Central Bank of Alabama, N.A.

• Decision Date: 15 June 1977
• Citation: 347 So.2d 114
• Parties: 21 UCC Rep.Serv. 1504 Tommy R. WELLS v. CENTRAL BANK OF ALABAMA, N.A., and Robertson Chrysler Plymouth, Inc. Civ. 1065.
• Court: Alabama Court of Civil Appeals

Page 114

347 So.2d 114

21 UCC Rep.Serv. 1504

Tommy R. WELLS v. CENTRAL BANK OF ALABAMA, N.A., and Robertson Chrysler Plymouth, Inc.

Civ. 1065.

Court of Civil Appeals of Alabama.

June 15, 1977.

James T. Baxter, III, of Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellant.

Danny D. Henderson of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellees.

PAUL, Retired Circuit Judge. ¹

This appeal concerns the propriety of directed verdicts in favor of defendants-appellees on certain counts of plaintiff-appellant's complaint as amended.

Plaintiff Tommy Wells purchased a 1972 Plymouth Sport Suburban station wagon from defendant Robertson Chrysler Plymouth in Ft. Payne. Robertson assigned its security interest in the automobile to defendant Central Bank of Alabama. Wells defaulted on payments. Central peaceably repossessed the auto and returned it to Robertson. Robertson sold the car at a private sale.

Plaintiff filed a complaint against Robertson and Central on July 14, 1975, and alleged (1) violation of the notice requirements of Tit. 7A, § 9-504, Code of Alabama (1940) (Recomp.1958) which entitled him to damages under § 9-507; (2) conversion; and (3) breach of contract. For the purposes of this appeal it is not necessary to discuss the other theories for recovery.

Robertson answered with a general denial and offered judgment for $558.21. Central answered with a general denial. Robertson moved for a more definite statement of plaintiff's claims.

Plaintiff amended his complaint by adding counts One(A) through Six(A). These counts were similar to the first six, the only difference being that count One(A) applied to both defendants (the violation of the notice requirement of § 9-504), while counts Two(A) through Six(A) applied only to Robertson. After the amendment Central reasserted its original answer. Robertson amended a cross-claim (not appearing in the record) to a third party complaint seeking recovery from Central for any sums for which it was found liable.

The case proceeded to trial before a jury. At the close of plaintiff's case the court granted directed verdicts in favor of Central on all counts and in favor of Robertson on all counts except One(A). At the close of all the evidence the court granted plaintiff's motion for a directed verdict against Robertson on the issue of liability. On its own motion the court directed verdict for plaintiff in the amount of $1,154.

Plaintiff's motions for new trial were denied by the court. Plaintiff appeals.

Plaintiff contends the court erred in directing verdict in favor of Central on counts One, Two, Four and Five and in favor of Robertson on counts Two(A), Four(A) and Five(A).

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opposing party. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). The directed verdict should be refused where the evidence is in conflict as to any material issue or where from the evidence reasonable inferences may be drawn to substantiate the claimed culpability of the defendant. Birmingham Elec. Co. v. McQueen, 253 Ala. 395, 44 So.2d 598 (1950); Baker v. Patterson, 171 Ala. 88, 55 So. 135 (1911). The case must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla in support of the theory of defendant's liability. Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So.2d 727 (1960); Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635 (1935); McGahey v. Albritton, 214 Ala. 279, 107 So. 751 (1926); Rule 50(e), ARCP.

Viewed most favorably to plaintiff the evidence was as follows: On October 28, 1972, plaintiff purchased the station wagon from Robertson. The cash price was $5,468.92. After trade-in and down payment the balance due was $3,200. With credit life and recording fees this came to $3,321.58. The finance charge was $597.38. Plaintiff was to make payments of $108.86 for 36 months. Wells was in default on two payments with a third four days overdue when Jimmy Hyatt, an employee of Central at its Scottsboro branch, peaceably repossessed the car in Chattanooga on June 9, 1975. Wells requested Hyatt to hold the auto 10 days to permit him to redeem it, and Hyatt, for Central, told Wells that it would be held 10 days to allow him to redeem the car by paying the balance in cash. That same day Hyatt took the car to Robertson's place of business and told Mr. Robertson to hold the car 10 days, that Wells said he would probably be down in the next 2 or 3 days and pick it up. Hyatt testified that Robertson replied to him that if he got a good offer on it he would not hold the car. (After plaintiff had rested his case and the court granted the direct verdict, Robertson in his defense denied this and testified that Hyatt told him Wells was not going to make another payment and they should sell the car if they got a good offer.)

Also, on June 9 a letter, designated a notice of sale, was prepared by Central's Repossession Supervisor, Billy Edwards, with address of the sender showing "Huntsville, Alabama." This notice indicated the auto would be sold by Central "after 5:00 P. M. on June 19, 1975, and from day to day thereafter until sold." The notice further stated, "You may redeem said property at any time before it is sold." No indication was given in the notice of where the sale would take place. The letter was mailed from Huntsville on June 12 by certified mail with return receipt requested. Wells received the letter on Saturday, June 14.

Central, by letter of June 9 to Robertson, indicated the balance due on the vehicle was $1,304.48. The balance was due July 9 or immediately if the auto were resold before then.

On June 14 Robertson sold the station wagon to Mid Allen for $2,256. Certain repairs had been performed on the car at a cost of $84.58. Preparation and clean-up prior to sale amounted to $100. By a check dated June 14 Robertson paid $1,304.48 to Central.

Wells attempted to contact Central by telephone on June 14 but received no answer. He called again on Monday, June 16 and was told he would be required to pay $1,304.48 to redeem the car. Mrs. Wells also called to find out where to pay the balance due and was informed Robertson had the car. Mr. Wells borrowed the money and with some friends went to Ft. Payne on Tuesday, June 17. Mr. Wells offered the sum to Central Bank in Ft. Payne but Central's employee refused to accept it. He then went to Robertson's place of business and made the same offer to Ed Robertson who said he had already sold the car and there was nothing he could do. Wells left without making any further demand and without asking whether any further expenses had been incurred. Robertson did not advise him of any further expense.

Billy Edwards testified the standard practice was to allow a debtor 10 days to redeem a repossessed vehicle. He further stated that he had told Mr. Wells by telephone that he could redeem by paying at any branch of Central. Central gave Robertson no written instructions to hold the auto until June 19.

During the period that the Wells were without a car, they used a vehicle owned by Mrs. Wells' father and leased a vehicle in early July for $100.89 when that vehicle was unavailable.

In answer to plaintiff's interrogatory, Central stated the NADA retail price for an automobile like plaintiff's was $2,175 in June of 1975.

Robertson in presenting its defense stated by witness Ed Robertson that Central would normally hold the car itself for 10 days and bring it to him only when it was ready to be sold. He testified the normal custom and practice was for Central to bring a release from the debtor waiving the right to redeem but it had not done so this time. When the car was brought to him on June 9, Robertson did not inquire whether the 10-day period had expired. Robertson paid $558.21 into court as the amount realized on the sale to Allen less the balance due Central, repair and clean-up expenses and a 25% sales commission. He stated he had unsuccessfully attempted to get the auto back from Allen.

Plaintiff's first issue is whether the trial court erred in directing a verdict in favor of Central on Count One, based on breach of a statutory duty. After stating certain uncontradicted facts, plaintiff alleges the following in Count One:

"3. The Defendants, acting individually and in concert, did not proceed in accordance with the provisions of Title 7A, Sections 9-101, et seq., Code of Alabama, 1940 (Recomp.1958), in that they did not, after repossession by the seller of the vehicle from the buyer, sell the vehicle in accordance with the requirements of the applicable law, and in addition thereto, did not give five days notice to the buyer of such sale.

"WHEREFORE, Plaintiff demands judgment against Defendants as provided in Title 7A, Section 9-507, Code of Alabama, 1940 (Recomp.1958), for all damages, both compensatory and punitive, that occurred as a proximate result of the above violation of statutory law, including but not limited to, loss of use, loss of benefit of bargain, attorneys fees, interest, and Court costs."

Tit. 7A, § 9-504(3) states:

"(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of...