Opinion
No. 78-942
Decided April 12, 1979.
All parties appealed from a judgment denying defendant any recovery of claimed charges for towing and storage of plaintiff's pickup truck.
Affirmed
1. AUTOMOBILES — Abandoned Vehicle — Lien by Garage Keeper — Dependent — Compliance With Statute — No Attempt — Contact Truck Owner — No Lien — Towing or Storage Charges — Not Recoverable. Although where apparently abandoned vehicle is removed to a garage, the garage keeper is accorded, by statute, a lien against the vehicle, that statute also provides that there can be no presumption of abandonment until police make a "bona fide effort" to contact owner of vehicle; thus, where it was undisputed that police made no effort to contact owner of truck before it was removed to garage, the provisions of the statute were not followed, and the trial court properly ruled that garage keeper held no lien on the truck and was not entitled to collect towing or storage charges from truck owner.
2. Abandoned Vehicles — Specific Statute Applicable — General Statute — — Abandoned Personal Property — Inapplicable. Inasmuch as storage and removal of abandoned vehicles is governed specifically by § 42-4-1101 et seq., C.R.S. 1973, trial court correctly ruled that provisions of general statute pertaining to abandonment of personal property, § 38-20-116, C.R.S. 1973, did not apply to action concerning lien against purportedly abandoned truck.
Appeal from the District Court of the County of El Paso, Honorable George M. Gibson, Judge.
D. Richard Toth, Michael D. Hockersmith, for plaintiff-appellee and cross-appellant.
Raymond Duitch, for defendants-appellants and cross-appellees.
All parties appeal from a judgment, entered after trial to the court, which denied defendants any recovery of claimed charges for towing and storage of plaintiff's pickup truck. We affirm.
The relevant facts are not disputed. In November 1975, the owner of a car wash in Colorado Springs telephoned the police department to report the apparent abandonment of plaintiff's truck on his property. At the request of the police, the owner of the car wash contacted defendant Lavee and arranged to have the vehicle removed. The police made no attempt to notify plaintiff.
In June 1976, plaintiff was notified by defendant Hall that he owed $504 for towing and storage. Plaintiff refused to pay. In June 1977, after a county court foreclosure action was filed by defendant Francois, plaintiff received a notice of foreclosure sale. Plaintiff then filed a counterclaim in the district court pursuant to Rule 313(b)(1) of the County Court Rules of Civil Procedure, and the suit was transferred to that court.
The district court held that (1) none of the defendants had a valid lien on plaintiff's truck, (2) plaintiff did not owe defendants anything for towing or storage, and (3) plaintiff was not entitled to recover on his counterclaim. In so holding, the court determined, among other things, that § 38-20-116, C.R.S. 1973 (1978 Cum. Supp.), "is not applicable to the facts of this case because said statute requires a 'lien holder' and the Court can find no lien." The court also found that the case was controlled by §§ 42-4-1102 and 1103, C.R.S. 1973, and that defendants could not recover because the procedure stated therein was not followed.
Defendants contend that the vehicle was "presumed abandoned" under either § 38-20-116, C.R.S. 1973 (1978 Cum. Supp.), or § 42-4-1102(2), C.R.S. 1973, and that they have a valid lien under § 42-4-1103(8), C.R.S. 1973. They argue that the failure of the police to follow the procedure set out in §§ 42-4-1102 and 1103, C.R.S. 1973, does not affect the validity of their lien. We disagree.
It is fundamental that "in statutory construction, legislative intent is the polestar." Posey v. District Court, 196 Colo. 396, 586 P.2d 36 (1978). And, if the meaning of a statutory provision is plain and no absurdity arises therefrom, then other rules of construction are not needed. Hill v. Sleep Products, Inc., 41 Colo. App. 133, 584 P.2d 93 (1978).
[1] Here, in pertinent part, § 42-4-1103(8), C.R.S. 1973, provides:
"Whenever a vehicle has been removed to a garage . . . under the provisions of this section, the keeper shall have a first and prior lien against said vehicle. . . ." (emphasis added)
And, if abandoned in violation of § 42-4-1102, C.R.S. 1973, a vehicle may be removed in accordance with § 42-4-1103(2), C.R.S. 1973; however, that statute also provides that there can be no presumption of abandonment "until a bona fide effort is made by the police officer to contact the owner or operator of the vehicle." As noted above, it is undisputed that in this case the police made no attempt to contact plaintiff before his truck was removed. Thus, the provisions of § 42-4-1103, C.R.S. 1973, were not followed, and the trial court properly held that no lien was created under § 42-4-1103(8), C.R.S. 1973.
Similarly, since abandonment of the vehicle could not be presumed under the statute, defendants had no right to remove and store the vehicle. Therefore, the trial court was correct in concluding that plaintiff did not owe defendants anything for towing or storage.
[2] The trial court was also correct in holding that § 38-20-116, C.R.S. 1973 (1978 Cum. Supp.) does not apply to the facts of this case. That section is in the article which provides for liens on personal property in several situations, see §§ 38-20-102, 105 and 106, C.R.S. 1973, and it establishes a presumption of abandonment if the stated conditions are met. It applies to each of the several liens created under § 38-20-101 et seq., C.R.S. 1973.
The removal and storage of abandoned vehicles, however, is specifically provided for in § 42-4-1101 et seq., C.R.S. 1973. These special statutes prevail over the more general abandonment provision discussed above, see Weather Engineering Manufacturing, Inc. v. Pinon Springs Condominiums, Inc., 192 Colo. 495, 563 P.2d 346 (1977); § 2-4-205, C.R.S. 1973, and therefore the trial court properly held § 38-20-116 inapplicable.
Because of the view we take of this case, we need not address plaintiff's only argument on cross-appeal regarding defendants' forfeiture of storage fees under § 42-5-109, C.R.S. 1973.
Judgment affirmed.
JUDGE ENOCH and JUDGE VAN CISE concur.