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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1033


Filed:  19 June 2007


v .                                     Onslow County
                                        No. 05-CVD-2387

    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- appellant.

    HUNTER, Judge.

    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 left.
    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 this hearing.

        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 without merit.
    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.

Id. 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. Webb, 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. at 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 issues, 315 N.C. 523, 538-39, 340 S.E.2d 408, 417 (1986). In Smith, 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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