{
  "id": 8528158,
  "name": "LOMAN GARRETT, INC. v. TIMCO MECHANICAL, INC.",
  "name_abbreviation": "Loman Garrett, Inc. v. Timco Mechanical, Inc.",
  "decision_date": "1989-04-18",
  "docket_number": "No. 8818SC484",
  "first_page": "500",
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    {
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      "category": "laws:leg_statute",
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      "weight": 2,
      "year": 1988,
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    {
      "cite": "N.C. Gen. Stat. \u00a7 1-440.43",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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      "year": 1988,
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  "last_updated": "2023-07-14T17:06:43.799233+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Arnold and Wells concur."
    ],
    "parties": [
      "LOMAN GARRETT, INC. v. TIMCO MECHANICAL, INC."
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nUnsuccessful intervenor appeals from the trial court\u2019s denial of its motion to intervene in a proceeding to determine plaintiff\u2019s right to property garnished from defendant\u2019s account debtor. We affirm the trial court\u2019s ruling.\nPlaintiff first filed suit against defendant in January of 1987. That action resulted in a voluntary dismissal, although, ancillary to that action, plaintiff had garnished a $20,576.60 debt owed defendant by a Virginia corporation. Those garnished funds were being held by the Clerk of Superior Court for Guilford County when plaintiff filed a second action on 14 October 1987. As before, plaintiff sought to recover $29,330.90 owed for heating and air conditioning equipment purchased by defendant on an open account with plaintiff. Plaintiff further sought, as it had before, an order of attachment based on defendant\u2019s status as a foreign corporation and defendant\u2019s intention to remove its assets from this State. Defendant filed answer on 4 December 1987. Later that month plaintiff made a motion for summary judgment; hearing on that motion was set for 1 February 1988.\nOn 29 January 1988, Texas Commerce Bank National Association, a Texas corporation (hereinafter \u201cthe Bank\u201d or \u201cappellant\u201d), filed a Motion to Intervene and Dissolve Garnishment and Levy. The Bank alleged that it had a perfected security interest in defendant\u2019s accounts, including the account represented by the garnished funds being held by the Clerk of Superior Court; that the security interest in defendant\u2019s accounts had been given by defendant as collateral for a $600,000.00 loan; and that defendant was in default of that loan in the amount of $239,070.36. The Bank did not serve plaintiff with a copy of its motion in advance of the hearing on plaintiff\u2019s motion for summary judgment. However, counsel for plaintiff consented to the Bank\u2019s motion being heard. Noting that the Bank was represented by the same counsel as represented defendant, the court denied the motion for lack of timeliness. The Bank appeals. We affirm.\nThe rule on intervention is as follows:\n(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action:\n(1) When a statute confers an unconditional right to intervene ....\nN.C. Gen. Stat. \u00a7 1A-1 (1988), Rule 24. The Bank argues that it had an unconditional right to intervene by virtue of the following provision of the statute on attachment:\nAny person other than the defendant who claims property which has been attached, or any person who has acquired a lien upon or an interest in such property, whether such lien or interest is acquired prior to or subsequent to the attachment, may\n(1) Apply to the court to have the attachment order dissolved or modified, or to have the bond increased, upon the same conditions and by the same methods as are available to the defendant, or\n(2) Intervene and secure possession of the property in the same manner and under the same conditions as is provided for intervention in claim and delivery proceedings.\nN.C. Gen. Stat. \u00a7 1-440.43 (1988).\nWith respect to subsection (1), a defendant who seeks to dissolve an order of attachment may do so \u201cat any time before judgment in the principal action.\u201d See N.C. Gen. Stat. \u00a7 1-440.36 (1988). With respect to subsection (2), the language of Rule 24 would govern, and the third party\u2019s motion to intervene must be made \u201cupon timely application.\u201d We believe the latter standard controls the resolution of the appeal before us for the following reasons.\nSection 1-440.43 allows a third party to apply to have the attachment order dissolved or to intervene and secure possession of the property. In the instant action, the relief ultimately sought by appellant was not to dissolve the attachment but to intervene for the purpose of claiming the attached funds for itself.\nThe statute further states that a third party may seek to dissolve an attachment order \u201cupon the same conditions and by the same methods as are available to the defendant.\u201d N.C. Gen. Stat. \u00a7 1-440.43. The attachment of property owned by a defendant is proper when the plaintiff seeks a money judgment in the principal action and shows a need for a prejudgment remedy in order to insure that funds will be available to satisfy that judgment. See N.C. Gen. Stat. \u00a7\u00a7 1-440.2, -440.3 (1988). The Bank, however, has made no allegations that the order of attachment was invalid on its face or otherwise. See N.C. Gen. Stat. \u00a7 1-440.36. Although a secured party\u2019s interest continues in property that has been attached, see N.C. Gen. Stat. \u00a7 25-9-306(2), the existence of a security interest does not insulate a debtor\u2019s property from state attachment proceedings. See N.C. Gen. Stat. \u00a7 25-9-311 (1988). There being no basis alleged by appellant for dissolving the attachment order, we therefore turn to the issue of timeliness under Rule 24.\nWhile motions to intervene made prior to trial are seldom denied, whether such motions are timely is a question addressed to the sound discretion of the trial court. State Employees\u2019 Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 264, 330 S.E. 2d 645, 648 (1985). The trial court is to consider the status of the case, the unfairness or prejudice to the existing parties, the reason for the delay, the resulting prejudice to the applicant if the motion is denied, and any unusual circumstances. Id.\nIn the case before us, the Bank sought to intervene at the time of the hearing at which the trial court was ready to resolve the matter before it based on the pleadings and affidavits submitted by the parties. Plaintiff\u2019s second complaint had been filed and served on counsel for defendant in October. The record affirmatively discloses that the same counsel had been representing the interests of the Bank, as well as those of the Bank\u2019s debtor, since before 3 June 1987 and was at all times since that date aware of the attachment proceedings. Counsel for the Bank had ample opportunity to intervene at any time after the filing of plaintiff\u2019s complaint. We hold that, based on the circumstances involved in the matter before it, the trial court did not abuse its discretion in denying the Bank\u2019s motion to intervene.\nAffirmed.\nJudges Arnold and Wells concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Tuggle Duggins Meschan & Elrod, P.A., by Robert C. Cone and Harold A. Lloyd, for plaintiff appellee.",
      "Poyner & Spruill, by Louis B. Meyer, III, David M. Barnes and Mary Beth Johnston, for intervenor appellant."
    ],
    "corrections": "",
    "head_matter": "LOMAN GARRETT, INC. v. TIMCO MECHANICAL, INC.\nNo. 8818SC484\n(Filed 18 April 1989)\nRules of Civil Procedure \u00a7 24\u2014 motion to intervene in garnishment\u2014 denied \u2014 no error\nThe trial court did not err in a proceeding to determine plaintiff\u2019s right to property garnished from defendant\u2019s account debtor by denying a third party bank\u2019s motion to intervene for lack of timeliness where the bank sought to intervene at the time of a hearing at which the trial court was ready to resolve the matter before it based on the pleadings and affidavits submitted by the parties; plaintiff\u2019s second complaint had been filed and served on counsel for defendant in October of 1987; the same counsel had been representing the interests of the bank and the bank\u2019s debtor since before 3 June 1987 and was at all times since that date aware of the attachment proceedings; and counsel for the bank had ample opportunity to intervene at any time after the filing of plaintiff\u2019s complaint.\nAPPEAL by Intervenor Texas Commerce Bank National Association from Order of Judge James A. Beaty, Jr., entered 4 February 1988 in GUILFORD County Superior Court. Heard in the Court of Appeals 30 November 1988.\nTuggle Duggins Meschan & Elrod, P.A., by Robert C. Cone and Harold A. Lloyd, for plaintiff appellee.\nPoyner & Spruill, by Louis B. Meyer, III, David M. Barnes and Mary Beth Johnston, for intervenor appellant."
  },
  "file_name": "0500-01",
  "first_page_order": 530,
  "last_page_order": 533
}