{ "id": 8524451, "name": "PATRICIA McLEAN DRUMMOND v. EARL CORDELL, d/b/a CORDELL'S BODY SHOP; and MELODY M. CORDELL", "name_abbreviation": "Drummond v. Cordell", "decision_date": "1985-03-05", "docket_number": "No. 8430SC598", "first_page": "438", "last_page": "443", "citations": [ { "type": "official", "cite": "73 N.C. App. 438" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "324 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "72 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526564 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/72/0262-01" ] }, { "cite": "248 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565194, 8565293, 8565169, 8565236, 8565270 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0550-02", "/nc/295/0550-05", "/nc/295/0550-01", "/nc/295/0550-03", "/nc/295/0550-04" ] }, { "cite": "244 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554854 ], "year": 1978, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0590-01" ] }, { "cite": "317 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687392, 4686004 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0310-02", "/nc/311/0310-01" ] }, { "cite": "312 S.E. 2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525869 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0154-01" ] }, { "cite": "218 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "183", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550176 ], "year": 1975, "pin_cites": [ { "page": "67", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0065-01" ] }, { "cite": "29 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595108 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0067-01" ] }, { "cite": "256 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "298 P. 109", "category": "reporters:state_regional", "reporter": "P.", "year": 1931, "opinion_index": 1 }, { "cite": "113 Cal. App. 91", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2186434 ], "year": 1931, "opinion_index": 1, "case_paths": [ "/cal-app/113/0091-01" ] } ], "analysis": { "cardinality": 537, "char_count": 10441, "ocr_confidence": 0.806, "pagerank": { "raw": 3.5397567860133557e-07, "percentile": 0.8847467555058229 }, "sha256": "a32aee9515e57cf9790208a130b0a99dc3d2034d084a1be9e8e814c07d616195", "simhash": "1:e3e02fa2be613d42", "word_count": 1788 }, "last_updated": "2023-07-14T21:55:13.639601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Webb concurs.", "Judge EAGLES dissents." ], "parties": [ "PATRICIA McLEAN DRUMMOND v. EARL CORDELL, d/b/a CORDELL\u2019S BODY SHOP; and MELODY M. CORDELL" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nThe opinion of this Court filed 15 January 1985 is hereby superseded by the following opinion.\nWe hold the trial court erred in concluding that the small claims judgment was void. That judgment could not be collaterally attacked, and it is proper on its face. Powell v. Turpin, 224 N.C. 67, 29 S.E. 2d 26 (1944). Since the small claims judgment was proper, it authorized defendant-lienor to sell the automobile pursuant to G.S. 44A-4. Because the lienor had authority to sell the vehicle to collect storage charges, plaintiff has no claim for conversion, since conversion is \u201can unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner\u2019s rights.\u201d Gallimore v. Sink, 27 N.C. App. 65, 67, 218 S.E. 2d 181, 183 (1975) (citations omitted) (emphasis added). Furthermore, since the small claims judgment is for defendant Earl Cordell\u2019s storage bill, Mr. Cordell has no counterclaim in this action for storage.\nWhile we have held that the trial court erred in submitting the issues of conversion and defendant\u2019s counterclaim for storage costs to the jury, it does not follow that the trial court should have directed a verdict for the defendant in the present action. It is the duty of the trial judge to submit to the jury such issues as will resolve all factual issues raised by the evidence given in the case. Wilkinson v. Weyerhaeuser Corp., 67 N.C. App. 154, 312 S.E. 2d 531, disc. rev. denied, 311 N.C. 310, 317 S.E. 2d 909 (1984). \u201cThe court should properly charge the jury on all theories of recovery supported by evidence.\u201d Lail v. Woods, 36 N.C. App. 590, 591, 244 S.E. 2d 500, 501, disc. rev. denied, 295 N.C. 550, 248 S.E. 2d 727 (1978). The evidence in the instant case tends to show that defendant, Mr. Cordell, sold the automobile under the authority of the small claims judgment, which provided that defendant could enforce his lien \u201cby public sale as provided in N.C.G.S. 44A-4(e).\u201d The evidence given in the case tends to show that defendant did not \u201ccause notice to be mailed to the person having legal title to the property if reasonably ascertainable,\u201d as is required by G.S. 44A-4(e)(l)al, and that defendant did not \u201cadvertise the sale by posting a copy of the notice of sale at the courthouse-door in the county where the sale is to be held,\u201d as is required by G.S. 44A-4(e)(l)b. The evidence also tends to show that only defendant\u2019s wife and daughter attended the sale, and that only defendant\u2019s daughter, Melody Cordell, bid on the car.\nG.S. 44A-4(g) provides:\nIf the 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 or any other party injured by such noncompliance in the sum of one hundred dollars ($100.00), together with a reasonable attorney\u2019s fee as awarded by the court. Damages provided by this section shall be in addition to actual damages to which any party is otherwise entitled.\nWe believe the evidence introduced at trial is sufficient to raise an inference that defendant Earl Cordell failed to substantially comply with the provisions of G.S. 44A-4(e) in conducting the sale. This is a factual issue which can be determined only by the jury. We thus hold the court erred in failing to submit this issue to the jury.\nIf on remand the jury should find from the evidence and by the-greater weight thereof that defendant failed to substantially comply with the provisions of G.S. 44A-4(e) in conducting the sale, the jury would then be required to determine what amount, if any, \u201cactual damages\u201d plaintiff suffered as a result of defendant\u2019s failure to conduct the sale according to G.S. 44A-4(e). The measure of plaintiffs actual damages would be the difference between the fair market value of the automobile at the time of the sale and the amount for which the car was actually sold to defendant Melody Cordell. Since there is no contention that Ms. Cordell was not a \u201cpurchaser for value without constructive notice of a defect in the sale,\u201d under G.S. 44A-6, the sale will stand and the purchaser, Ms. Cordell, is entitled to possession of and title to the automobile.\nIf the jury should answer the first issue affirmatively, the court will add to the verdict of actual damages, if any, the statutory penalty of one hundred dollars and reasonable attorney\u2019s fees.\nWe note that defendant must account for the money paid to him by his daughter as a result of the sale of the car in the manner set out in G.S. 44A-5.\nThe result is: the judgment of the superior court entered 13 January 1984 is vacated and the cause is remanded to that court for a new trial in accordance with this opinion.\nVacated and remanded.\nJudge Webb concurs.\nJudge EAGLES dissents.", "type": "majority", "author": "HEDRICK, Chief Judge." }, { "text": "Judge Eagles\ndissenting.\nI dissent from that portion of the majority opinion that reverses the directed verdict for plaintiff on the issue of liability for substantial non-compliance with the provisions of G.S. Chapter 44A. Plaintiffs admitted non-compliance and no evidence to the contrary was offered. I concur in the remand for determination of damages, if any, arising from the failure to substantially comply.\nHere, plaintiffs made a request for admissions, in pertinent part, as follows:\nThat no notice of the sale of the motor vehicle, the subject of this lawsuit, by Cordell\u2019s Body Shop was posted at the courthouse in Buncombe County, North Carolina, as required by N.C.G.S. 44A.\nDefendants answered as follows:\nDefendants admit that so far as they know, no notice of the sale of the motor vehicle, the subject of this lawsuit, by Cor-dell\u2019s Body Shop, was posted at the courthouse in Buncombe County, North Carolina.\nThe magistrate\u2019s judgment authorized the defendants\u2019 lien to be enforced by public sale as provided in G.S. 44A-4. G.S. 44A-4(e)(1) requires in pertinent part that \u201cnot less than 20 days prior to sale by a public sale, the lienor shall advertise the sale by posting a copy of the notice of sale at the courthouse door in the county where the sale is to be held.\u201d This requirement of notice to the public was not met. Where posting is required, as in G.S. 44A-4(e)(1), a failure to comply with the provisions of a statute requiring posting may constitute an irregularity warranting a setting aside of the sale, particularly where the sale brings an inadequate price. 47 Am. Jur. 2d, Judicial Sales, Section 85 (1969 Cum. Supp.). If a failure to comply with a statute requiring posting of notice of a public sale might warrant setting aside a sale, it is surely a failure to substantially comply with the statutory requirements for a judicial sale when the required notice is not posted. The term \u201cpublic sale\u201d has been said in effect to require notice to a sufficic*r 1 number of people to insure competitive bidding and fairness of the sale. Standley v. Knapp, 113 Cal. App. 91, 298 P. 109 (1931). Here, the only persons to attend the sale were the lienor\u2019s wife and daughter. The daughter bought the 1979 Fiat for $1,000 in July of 1981. The plaintiff testified that she purchased the automobile new in July 1979 for $8,330.\nDefendant Earl Cordell admits that he did not comply with G.S. 44A-4(e)(l) regarding notice to be posted at the courthouse door. That admission necessarily includes that he did not comply with G.S. 44A-4(f) regarding the required contents of the notice of sale to be posted at the courthouse door.\nFor those reasons, non-compliance with the provisions for the enforcement of a statutory lien pursuant to G.S. 44A-1, et seq. was a proper subject for directed verdict. N.C.N.B. v. Burnette, 297 N.C. 524, 256 S.E. 2d 388 (1979).\nI concur in other respects with the majority but would limit the matters considered on remand to a determination by the jury of the amount of damages, if any, arising from the defendants\u2019 substantial non-compliance with Chapter 44A.", "type": "dissent", "author": "Judge Eagles" } ], "attorneys": [ "McLean and Dickson, by Russell L. McLean, III, and Robert L. Ward, for plaintiff appellee.", "Roberts, Cogburn, McClure and Williams, by Max 0. Cog-burn and Issac N. Northup, Jr., for defendant appellant." ], "corrections": "", "head_matter": "PATRICIA McLEAN DRUMMOND v. EARL CORDELL, d/b/a CORDELL\u2019S BODY SHOP; and MELODY M. CORDELL\nNo. 8430SC598\n(Filed 5 March 1985)\n1. Judgments g 16\u2014 judgment proper on its face \u2014no collateral attack\nA small claims judgment authorizing defendant to sell plaintiffs automobile for storage costs pursuant to G.S. 44A-4 was proper on its face and thus could not be collaterally attacked, and plaintiff has no claim for conversion of the automobile.\n2. Mechanics\u2019 Liens \u00a72\u2014 sale of automobile for storage costs \u2014 non-compliance with statutes \u2014 jury question as to actual damages\nThe evidence was sufficient to be submitted to the jury on the issue of \u201cactual damages\u201d suffered by plaintiff as a result of defendant\u2019s failure to conduct a sale of plaintiffs automobile for storage costs in substantial compliance with G.S. 44A-4(e) where it tended to show that a magistrate\u2019s judgment provided that defendant could enforce his lien by public sale as provided in G.S. 44A-4(e); defendant failed to mail notice of the sale to plaintiff as required by G.S. 44A-4(e)(l)al and failed to post notice of the sale at the courthouse door as required by G.S. 44A-4(e)(l)b; and only defendant\u2019s wife and daughter attended the sale.\n3. Mechanics\u2019 Liens \u00a7 2\u2014 failure properly to conduct public sale \u2014 measure of damages\nThe measure of plaintiffs actual damages for defendant\u2019s failure to conduct a public sale of plaintiffs automobile for storage costs in accordance with G.S. 44A-4(e) is the difference between the fair market value of the automobile at the time of sale and the amount for which the automobile was actually sold to defendant\u2019s daughter. The court will add to the verdict of actual damages the $100 penalty and reasonable attorney fees as provided in G.S. 44A-4(g).\nJudge Eagles dissenting.\nAppeal by defendant from Downs, Judge. Judgment entered 13 January 1984 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 24 October 1984. Heard on rehearing in the Court of Appeals 20 February 1985.\nThe facts of this case are set out in Drummond v. Cordell, 72 N.C. App. 262, 324 S.E. 2d 301 (1985). In apt time, plaintiff-appellee, Patricia McLean Drummond, filed a petition to rehear pursuant to Rule 31, Rules of Appellate Procedure. This court granted the petition to rehear.\nMcLean and Dickson, by Russell L. McLean, III, and Robert L. Ward, for plaintiff appellee.\nRoberts, Cogburn, McClure and Williams, by Max 0. Cog-burn and Issac N. Northup, Jr., for defendant appellant." }, "file_name": "0438-01", "first_page_order": 470, "last_page_order": 475 }