Waterhouse v. Carolina Limousine Manufacturing, Inc. , 96 N.C. App. 109 ( 1989 )

EAGLES, Judge.

Waterhouse excepted to the trial court’s conclusions regarding Southwestern’s good faith effort to file and Southwestern’s priority. Because of Southwestern’s failure to file the financing statement with the Secretary of State, Southwestern’s security interest in Carolina’s equipment was not perfected by filing. Both parties agree that Southwestern’s interest was perfected, if at all, by possession, which occurred on 4 December 1987. Therefore, the trial court’s conclusion regarding good faith efforts to file is not dispositive; filing is not the basis on which Southwestern’s perfecting of its security interest rests.

Southwestern asserts it perfected its security interest by physically possessing the collateral. Under the Uniform Commercial Code a security interest in goods is perfected without filing when the secured party takes possession of the collateral. G.S. 25-9-302(l)(a); G.S. 25-9-305. This perfected status “continues only so long as possession is retained.” G.S. 25-9-305. Here, the trial court concluded that the posting of the notice of levy “constituted an interruption in the possession of [the collateral] by Southwestern.” Although the issue of whether a levy by the sheriff interrupts a creditor’s possession has apparently not been answered in North Carolina, other states with statutory provisions identical or sufficiently similar to our G.S. 25-9-305 have answered the question. They have held that a prior perfected interest is superior to the interest of a judgment creditor who has obtained a lien. See Grain Merchants of Indiana, Inc. v. Union Bank and Savings Co., 408 F.2d 209 (7th Cir. 1969), cert. denied, 396 U.S. 827, 24 L.Ed. 2d 78, 90 S.Ct. 75 (1969); Rocky Mountain Ass’n. of Credit Mgmt. v. Hessler Mfg. Co., 37 Colo. App. 551, 553 P.2d 840 (1976); National Shawmut Bank v. Vera, 352 Mass. 11, 223 N.E.2d 515 (1967); General Motors Acceptance Corp. v. Stotsky, 60 Misc. 2d 451, 303 N.Y.S.2d 463 (1969); William Iselin & Co. v. Burgess & Leigh, Ltd., 52 Misc. 2d 821, 276 N.Y.S.2d 659 (1967). In one case remarkably similar to the instant case the court found that a creditor who had perfected his security interest in goods by possession had priority over the sheriff who, at a later date, levied on the goods for delinquent personal property taxes of the debtor. Walter F. Heller & Co. v. Salerno, 168 Conn. 152, 362 A.2d 904 (1975).

Upon proper presentation to this court, when a ruling below is based on a misapprehension of applicable law, we will remand the cause in order that it may be considered in its true legal light. Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334, 338 (1979). Here, however, no exception was taken to the conclusion of the trial court that the levy constituted an interruption of Southwestern’s possession. Where there is no exception by any of the parties to the adjudication of a particular matter presented for decision, that part of the judgment to which there is no exception becomes the law of that case. North Carolina Nat. Bank v. Barbee, 260 N.C. 106, 112, 131 S.E.2d 666, 671 (1963); Kessler v. North Carolina Nat. Bank, 256 N.C. 12, 17, 122 S.E.2d 807, 811 (1961). Therefore, the law of this case is that Southwestern’s possession was interrupted by Waterhouse’s levy.

Because Southwestern’s lien perfection was based only on possession of the collateral and the sheriff’s levy interrupted that possession in this case, the trial court erred in finding that Southwestern had priority over Waterhouse. We therefore reverse the judgment of the trial court and remand for entry of judgment in favor of Waterhouse.

Reversed and remanded.

Judges Johnson and Greene concur.