Civil Practice – Conversion Argument – Appellate Jurisdiction

The conversion theory raised by the dissent was not properly before us and we declined to address it.

We affirmed.

This appeal involved a dispute over a few thousand dollars for a truck that got towed. In the trial court and the Court of Appeals, the truck’s owner raised a series of straightforward legal arguments about the validity and amount of the towing company’s lien. The lower courts rejected those arguments. The appeal then came to this Court based on a dissent at the Court of Appeals that does not have anything to do with the party’s arguments. The dissent concocted a new theory for the truck owner and reasoned that, based on that new theory, the trial court erred.

Circle of Seven is a limited liability company that has now ceased operations. Several years ago, Circle of Seven left a Dodge Ram truck on property that it lost in a foreclosure sale. At the time, Circle of Seven’s sole managing member, Sainte Deon Robinson, was incarcerated after pleading guilty to federal crimes. Robinson left Eulanda Elliot, a Circle of Seven employee, in charge of the company’s affairs when he went to prison. The purchaser of the foreclosed property hired Bottoms Towing & Recovery to tow the Dodge Ram away from the property. Bottoms Towing later petitioned to sell the truck to satisfy the lien for unpaid towing and storage expenses. Circle of Seven opposed the sale and challenged the amount of the purported lien.

The dissenting judge concurred in the majority’s “conclusion that petitioner possesses a valid statutory lien” but asserted that the trial court “erred in its calculation of the offset to reduce the lien amount due to Bottoms’ unlawful conversion and personal use” of the truck. The dissent reasoned that Bottoms Towing’s unauthorized use of the truck while it should have been stored awaiting pickup was a form of unlawful “conversion.” “Our General Statutes should provide a statutory remedy and offset” for this unlawful conversion, the dissent reasoned.

Because the dissent believed the trial court’s reduction of the claimed lien amount was not a permissible way to “compute this offset value against the lien,” the dissent would have reversed the trial court’s order and judgment and remanded for the trial court to assess “the loss in value” of the truck—in other words, an offset based on the reduction in the truck’s “book value” due to Bottoms Towing’s unauthorized use. The dissent provided extensive reasoning for this position, and we therefore have appellate jurisdiction over the issue. But possessing appellate jurisdiction does not automatically mean the issue is one that we can properly address. This issue is not properly before this Court, and we therefore declined to consider it.

Circle of Seven never raised a conversion argument, never argued that Bottoms Towing’s unauthorized use had reduced the value of the truck, and never presented any evidence as to the value of the truck. Importantly, Circle of Seven did not bring a claim for conversion and did not make any argument that Bottoms Towing diminished the value of the truck—the sole basis for the dissent in this case. That issue “was not mentioned until the Court of Appeals dissent.”

The dissent’s approach to this case would effectively require the trial court to start over from the beginning—conduct another hearing, receive evidence on the change in the truck’s fair market value, and then enter an entirely different order. Our rules of preservation exist precisely to discourage this sort of unfair do-over in the trial court. Circle of Seven had the opportunity to present this evidence to the trial court and the opportunity to raise this issue in its appellate briefing to the Court of Appeals. It did neither—understandably so, because Circle of Seven had different arguments to contest the claimed storage charges under the language of the applicable statute.

This is a statutory proceeding to authorize the sale of a motor vehicle under a lien. The dissent’s theory concerns affirmative claims for conversion or negligence on the part of a bailee. These are claims that must be raised in a complaint or counterclaim, not as statutory defenses to the sale proceeding. Accordingly, the conversion theory raised by the dissent was not properly before us and we declined to address it.

Affirmed.

Bottoms Towing & Recovery LLC v. Circle of Seven LLC (Lawyers’ Weekly No. 010-088-24, 22 pp.) (Richard Dietz, J.) Appealed from Nash County Superior Court (Quentin T. Sumner, J.) Fields & Cooper, PLLC, by Ryan S. King and John S. Williford Jr., for petitioner-appellee; Q Byrd Law, by Quintin D. Byrd, for respondent-appellant. North Carolina Supreme Court