Appeal by defendant from an order entered 9 January 2006 by
Judge Carol A. Jones in Onslow County District Court. Heard in the
Court of Appeals 11 April 2007.
Thomasine E. Moore for plaintiff-appellee.
Lanier, Fountain & Ceruzzi, by John W. Ceruzzi, for defendant-
David Fountain (defendant) appeals from an order against him
in the amount of $5,375.00. We affirm in part and reverse in part.
In January 2005, Michael F. Wells (plaintiff) took his car
to Fountain's Body Shop, owned by defendant, for repairs from
damages resulting from a car accident. At that time, plaintiff
also gave defendant a 1977 boat that the parties agreed would be
worth a $900.00 credit toward the repairs. An estimate of the cost
to repair the car was apparently drawn up by defendant but not
provided to plaintiff. This estimate included a line item entry of
$3,780.00 for parts. At the hearing, the parties stated that, at the time plaintiff
brought in his car for repairs, they had different understandings
of the arrangement as to fixing and payment for the car. Plaintiff
stated his understanding was that the value of the boat he gave
defendant ($900.00) would go toward what he would owe him for parts
and labor, and anything over that $900.00 plaintiff would pay out
of pocket. Defendant stated his understanding was that the value
of the boat was payment toward labor only, and that plaintiff would
pay for and provide parts to defendant. Plaintiff later delivered
to defendant the damaged parts a previous mechanic had removed from
the vehicle (which defendant had requested for diagnostic
purposes), but never purchased or delivered new parts.
After plaintiff brought his car to defendant in January 2005,
he came by defendant's body shop periodically to check on
defendant's progress. Each time he did so, defendant told him that
he had not gotten to it yet. On these visits, plaintiff observed
that the vehicle had remained in the same parking spot it had been
placed in when he originally brought it in.
On 31 May 2005, plaintiff went to defendant's house and asked
about the status of his car. At that time, defendant told him that
he had sold parts from the boat given him by plaintiff but had not
yet been paid for them, so he had been unable to purchase the
necessary parts to fix the car. While plaintiff waited, defendant
called a supply shop and found that the parts could be purchased
there for $850.00. He demanded that plaintiff go purchase thoseparts in order for defendant to fix the car, but plaintiff simply
Two days later, plaintiff brought suit in small claims court,
seeking restitution of the $900.00 value of the boat he gave
defendant as payment toward repairs. The court found in favor of
plaintiff in the amount of $900.00 and taxed costs to defendant.
Defendant appealed, filing an answer and counterclaim for storage
fees in the amount of $2,700.00. Plaintiff filed a reply and
crossclaim for $5,725.00 in actual damages.
The case was heard in district court on 10 November 2005. As
of the date of that hearing, defendant was still in possession of
the car. Throughout the time defendant was in possession of the
car -- from January 2005 through November 2005 -- plaintiff was
making monthly loan payments on it in the amount of $540.00.
At the hearing, defendant testified that after months of
searching, he managed to find and purchase virtually all the
necessary parts on 9 and 10 November 2005, the day before and
morning of the hearing, for a total cost of less than $1,000.00.
He testified that he began installing them immediately, and at the
time of the hearing the repairs were almost complete. Defendant
presented as evidence a bill for the completed work on the car,
which, after a $900.00 credit for the boat, came to $2,633.00 for
the repairs and $2,700.00 for storing the car for a total of
$5,333.00. The trial court found in favor of plaintiff, awarding him
$750.00 in attorney's fees and $4,625.00 in actual damages, and
ordering defendant to return plaintiff's car. Defendant appeals.
Defendant makes three arguments, each of which challenges one
or more of four of the trial court's findings of facts:
4. In December 2004, the parties agreed that
the Defendant would purchase parts and
make repairs to the Plaintiff's 2000
Mitsubishi Montero Sport LS motor vehicle
in exchange for the Plaintiff's 1977 boat
and trailer valued in excess of $2000.00.
The Plaintiff delivered his vehicle to
the Defendant December 2004.
. . .
15. The Defendant still has possession of the
Plaintiff's vehicle as of the date of
16. The Defendant wrongfully possessed the
Plaintiff's vehicle from May 2005 through
September 2005. The loss of use of the
vehicle has a fair market value in excess
of $745 per month.
17. The Plaintiff incurred expenses for
attorney fees in the amount of $750.00.
When the trial court sits as a fact-finder, its findings of
fact are conclusive on appeal if supported by competent evidence,
even if there is evidence which would support alternative
findings. Creech v. Ranmar Props
., 146 N.C. App. 97, 100, 551
S.E.2d 224, 227 (2001).
However, defendant failed to assign error to any of these
findings of fact. Instead, he assigned error to the conclusions of
law based on these findings of fact. As such, 'the finding[s are]presumed to be supported by competent evidence and [are] binding on
appeal.' Dreyer v. Smith
, 163 N.C. App. 155, 157, 592 S.E.2d 594,
595 (2004) (quoting Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991)).
Defendant first argues that the trial court erred in holding
that defendant was not entitled to be paid for storing plaintiff's
car for 180 days, as allowed by N.C. Gen. Stat. § 44A-2 (2005), or
for the work he performed on plaintiff's car. This argument is
Specifically, defendant states that because his claim for
storage fees dates from January 2005, he is entitled to storage
fees from that point through May 2005, at which time the trial
court stated that his wrongful possession of the vehicle began.
The claim for storage fees is made pursuant to N.C. Gen. Stat. .
44A-2(d), which states in pertinent part that:
Any person who repairs, services, tows, or
stores motor vehicles in the ordinary course
of the person's business pursuant to an
express or implied contract with an owner or
legal possessor of the motor vehicle . . . has
a lien upon the motor vehicle for reasonable
charges for such repairs, servicing, towing,
storing, or for the rental of one or more
substitute vehicles provided during the
repair, servicing, or storage.
. There seems to be no dispute that defendant does in the
ordinary course of business repair, service, tow, and store motor
vehicles. However, this statute does not apply here for several
reasons. First, in this case, defendant was not storing the vehicle
for plaintiff, but was rather in possession of it for the purpose
of fixing it. Had he completed the repairs in a reasonable time
period, he certainly would not have presented plaintiff with a bill
for the repairs plus storage fees.
Also, this Court has never applied the statute to protect the
interests of the party who failed to perform; it has been applied
to protect the interests of a party who has performed and not been
compensated. For example, in Old Salem Foreign Car Serv., Inc. v.
, 159 N.C. App. 93, 582 S.E.2d 673 (2003), this Court upheld
the plaintiff's lien where the defendant orally contracted with the
plaintiff for repairs to be done on his car, then, after the work
was completed, failed for four months to respond to the plaintiff's
repeated attempts to contact him as to payment and pick-up. Id
94-95, 582 S.E.2d at 674-75.
Further, the statute specifically states that the lien will be
for reasonable charges for such
repairs, servicing, towing, [or]
storing -- that is, the repairs, services, etc. for which the
parties have contracted, not any
actions taken by the party
performing the repairs. N.C. Gen. Stat. § 44A-2(d). Such a broad
application would make little logical sense and subject parties
such as plaintiff to liability for any repairs, servicing, towing,
or storing that parties such as defendant undertook, regardless of
whether plaintiff agreed beforehand to accept and be responsible
for payment as to those services. The statute does not support defendant's argument, and as such
this assignment of error is without merit.
Defendant next challenges the award of damages for loss of use
of plaintiff's vehicle, as well as the total amount of damages
awarded, which was $4,625.00. Specifically, he challenges finding
of fact no. 16, which states that defendant wrongfully possessed
the car from May 2005 through September 2005, and that the fair
market value for use of the car is $745.00 per month. This
argument is without merit.
As stated above, this finding of fact is conclusive because
defendant did not specifically assign error to it. Because this
finding was the basis for the trial court's calculation of damages
($745.00 per month for five months, plus $900.00 for the value of
the boat transferred to defendant in payment) and the only grounds
on which defendant attacks the award of actual damages, this
assignment of error is dismissed.
Finally, defendant argues that the trial court improperly
awarded attorney's fees to plaintiff. We agree.
[T]he general rule has long obtained that a successful
litigant may not recover attorneys' fees, whether as costs or as an
item of damages, unless such a recovery is expressly authorized by
statute. Enterprises, Inc. v. Equipment Co
., 300 N.C. 286, 289,
266 S.E.2d 812, 814 (1980). Because the trial court gave no
statutory basis for awarding these fees, the award is invalid. [A]ny award of attorney fees must be supported by appropriate
findings based on competent evidence. Smith v. Price
, 74 N.C.
App. 413, 423, 328 S.E.2d 811, 818 (1985), reversed as to other
, 315 N.C. 523, 538-39, 340 S.E.2d 408, 417 (1986). In
, where the trial court had not made appropriate findings of
fact to support its award of attorney's fees, this Court vacated
the award and remanded for further proceedings on that issue. Id
In light of the absence of statutory findings to support the
award of attorney's fees in this case, we remand for findings of
fact on that issue.
Because defendant did not properly challenge the findings of
fact in this case, we affirm as to the award of damages. We
reverse the award of attorney's fees and remand for further
proceedings on that issue because the trial court did not make
appropriate findings of fact.
Affirmed in part, reversed and remanded in part.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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