Borg-Warner Acceptance Corp. v. David

232 S.E.2d 867 (1977) 32 N.C. App. 559

BORG-WARNER ACCEPTANCE CORPORATION
v.
Edward J. DAVID.

No. 7612SC665.

Court of Appeals of North Carolina.

March 16, 1977.

Tally & Tally by John C. Tally, Fayetteville, for plaintiff-appellee.

Downing, David, Vallery & Maxwell by Edward J. David, Fayetteville, for defendant-appellant.

PARKER, Judge.

The determinative question is whether the trial court was correct in its conclusion that the 10 November 1972 agreement was a lease rather than a security agreement. We hold that it was.

The instrument on its face is designated a lease in which plaintiff is named as lessor and Key, Inc., is named as lessee. It is for a fixed term of 60 months and specifies the amount of the monthly rental payments to be made by the lessee to the lessor. In addition, the instrument contains the following provisions: no title or right in the equipment passes to lessee except the rights expressly granted; the equipment "shall always remain and be deemed personal property even though attached to realty"; the lessee agrees to keep the leased property "in first class condition and repair" at lessee's expense, and all "repairs or accessories made to or placed in or upon said equipment shall become a component part thereof and title thereto shall be immediately vested in Lessor and shall be included under the terms" of the lease; on expiration of the rental period or other termination of the lease the leased equipment is to be shipped to lessor at lessee's expense. More importantly, nowhere in the instrument is the lessee given any right to renew the lease, to extend its term, or to purchase the leased property. Such an arrangement is a valid lease and not a security agreement. In re Wright Homes, Inc., 279 F. Supp. 598 (M.D.N.C.1968); see Leasing Corp. v. Hall, 264 N.C. 110, 141 S.E.2d 30 (1965).

In his brief defendant contends that even if the instrument be considered a lease rather than a security agreement, he is entitled to prevail since the leased property was so attached to the realty that he was entitled to assume it was part thereof when he purchased the apartment building. We do not pass on this contention, since it is not raised by the record. No evidence was presented to show the manner, if any, in which the leased property was attached to the realty, and the trial court properly made no findings in this regard. Defendant neither requested any such findings nor did he take exception to any of the findings of fact which were made. Indeed, the only exception in the entire record is the one directed to the signing and entry of the judgment. This presents for appellate review only the question whether the judgment is supported by the findings of fact and the conclusions of law which were made. Rule 10(a), Rules of Appellate Procedure; Sternberger v. Tannenbaum, 273 N.C. 658, 161 S.E.2d 116 (1968). We hold that it was.

Affirmed.

MARTIN and ARNOLD, JJ., concur.