Ford Motor Credit Co. v. Hunt ( 1977 )

Webb, Judge.

This appeal concerns a tort action brought by the debtor, Hunt, against the secured creditor, Ford Motor Credit Company, for wrongful repossession of Hunt’s new car.

Hunt bought the 1972 Mercury in March, 1972, from a retailer, and entered into an automobile retail installment contract covering the purchase and financing of the vehicle. The contract was subsequently assigned to Ford. Under the contract, Hunt was to pay the amount financed in equal monthly installments, which he did for a period of time thereafter. Hunt then failed to make payments for four consecutive months. In April, 1973, while the contract was still in default, Ford repossessed the car from Hunt’s residence. Ford did not give any prior notice to Hunt of the repossession, nor did it notify Hunt that it was going to declare the entire balance due under the acceleration clause of the contract. It notified Hunt the following day that it had repossessed the car and informed him of his right to redeem the property within ten days upon paying the balance due. Hunt did not redeem the car, and Ford subsequently sold it resulting in a deficiency.

Hunt then brought this tort action against Ford for wrongful repossession and trespass. Ford counterclaimed for the deficiency, and both parties moved for partial summary judgment as to their respective claims. The trial court denied Ford’s motion and granted Hunt’s, concluding that Ford’s repossession without notice to Hunt constituted a tort. Ford appeals, enumerating as error both the grant and the denial of the respective motions for partial summary judgment.

1. Upon default the secured party has the right to take possession of the collateral "unless otherwise agreed.” UCC § 109A-9 — 503.

2. Was it "otherwise agreed” under the default paragraph in the contract here? It provides:

"In the event Buyer defaults in any payment, or fails to obtain or maintain the insurance required hereunder, or fails to comply with any other provision hereof, or a proceeding in bankruptcy, receivership or insolvency shall be instituted by or against Buyer or his property, or Seller deems the Property in danger of misuse or confiscation, or Seller otherwise reasonably deems the indebtness or the Property insecure, Seller shall have the right to declare all amounts due, or to become due hereunder to be immediately due and payable and Seller shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code including the right to repossess the Property wherever the same may be found with free right of entry, and to recondition and sell the same at public or private sale.” (Emphasis supplied.)

It will be observed that the declaration-of-acceleration clause and the repossession clause are joined together by the word "and.” Should that word be construed in the conjunctive in the sense that the right to repossess is in addition to, and independent of, the right to declare acceleration?” Certainly the word "and” has that meaning.

But it has many others as well. One of them involves the notion of consequence or sequel. As Webster’s Second has it, "And. 1. Expressing the general relation of . . . sequence; thus:... linked to;... then ... Also, having an implication of:... d. A consequence or sequel.” Webster’s New International Dictionary (2d Ed. 1960).

Argued October 13, 1976 Decided February 28, 1977 Rehearing denied March 16, 1977 Levine, DAlessio & Cohn, Morton P. Levine, Homer S. Mullins, for appellant. Scheer & Eisner, Robert A. Eisner, Ronald A. Matamoros, for appellee.

Thus the contract can well be read: "Seller shall have the right to declare [acceleration] and [then] Seller shall have [repossession rights],” those rights being a logical consequence of, or sequel to, or that which follows upon or is triggered by, the declaration of acceleration. In my view we must adopt this latter construction since it is the least favorable to the creditor, which could have chosen words of precision. Code Ann. § 20-704 (5); Hodges Appliance Co. v. U.S. F. & G. Co., 133 Ga. App. 936 (3) (213 SE2d 46) (1975) . Consequently, this case is controlled by Horn v. Fulton Nat. Bank, 140 Ga. App. 568, and the grant to plaintiff of partial summary judgment as to liability is affirmed.

3. Ford also seeks review of the denial of its motion for summary judgment which apparently went to both the plaintiffs claim and its counterclaim. The Supreme Court recently disapproved of our holding in Ga. Motor Club v. Nat. Bank &c. Co., 137 Ga. App. 521 (2) (224 SE2d 498) (1976) which would have permitted review of this denial without requiring interlocutory appeal procedures. Ga. L. 1975, p. 757 (Code Ann. § 6-701 (a) 2 (A)); Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840 (2) (229 SE2d 753) (1976). It is apparent that the Supreme Court intended, by that ruling, to require that appeals from all orders of denials of motion for summary judgment be controlled by the interlocutory appeal procedure. We follow that ruling and, because those procedures were not followed, do not review this portion of the appeal.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian, P. J., Stolz, McMurray and Smith, JJ., concur. Marshall and Shulman, JJ., dissent.