*1 APPEALS THE COURT OF 742 IN CITIFINANCIAL, v. MESSER INC. 742 by jury, $4,500 comprised awarded $13,382.65, be which was $1,382.65 attorney’s fees, in costs. Our Court

$7,500 in and finally to be “judgment obtained” construed by plaintiff from ultimately finally obtained amount “the measuring purposes as the stick the court which serves reasons, that, within confines For we conclude Rule 68. these finally 68, means the amount ulti- obtained’ ‘judgment of Rule i.e., jury’s judgment, final mately representing the entered as by respec- by any adjustments, applicable verdict as modified controversy, simply the amount particular tive court jury’s verdict.” Swain, 246, 249, 566, (2000) (quot- S.E.2d 568 Roberts v. 409, (1995)). ing Miller, Poole v. Attorney’s calculating when the amount properly fees are included at Roberts, N.C. at 538 S.E.2d 568. judgment. the final See $13,382.65,exclu- properly judgment found “[t]he [$3,000] even interest, the offer of sive of exceeds $5,000.00 third-party The trial paid defendant.” reduced plaintiff awarding attorney’s in fees not err and costs court did denying them to defendant. part. Dismissed affirmed and ELMOREconcur. Judges McCULLOUGH CORPORATION, INC., CITIFINANCIAL, CREDIT f/k/a COMMERCIAL Plaintiff Defendant/Third-Party MESSER, DAVIS, v. T.L. STATE D. CYNTHIA Plaintiff TRANSPORTATION, OF DEPARTMENT OF DIVISION OF NORTH CAROLINA Third-Party VEHICLES, MOTOR Defendants No. COA04-261 January 2005) (Filed 4 recovery of vehicles — notice to subse- Vehicles— stolen Motor purchaser quent summary judgment DMV

The trial court erred recovery car where there arising an action from stolen subsequent pur- defendant, DMV gave was no evidence that required by Although argued chaser, the notice statute. *2 (2005)] [167 defendant had right hearing no to notice or a because she could paramount not show a right car, her evidence showed a suf- protection ficient interest to merit under the North Carolina 20-108(c). Constitution. N.C.G.S. §

Judge Steelman concurring. Appeal by defendant from order entered 20 November 2003 Bradley Haywood Judge County B. Letts in District Court. Heard in Appeals the Court of 13 October 2004. McLean, III, defendant/third-party

Russell L. plaintiff for Attorney Roy Cooper, by Attorney General Assistant General Jeffrey Edwards, R. the State.

CALABRIA,Judge.

Cynthia appeals entry D. (“appellant”) Messer judgment in favor of T.L. (“Davis”) Davis and the State of North Department Transportation, Carolina Division of Motor Vehicles (“DMV”)(collectively “appellees”). We reverse. 1999, appellant

On 24 June security executed a note and agree- Citifinancial, Inc., ment with Corporation f/k/a Commercial Credit (“Citifinancial”) principal $9,352.81 purchase amount of for the security Chevrolet Monte Carlo. Citifinancial obtained a interest in the vehicle to secure the loan. July

In an officer of DMVconducted a routine vehicle (“VIN”) verification, identification number discovered there were possibly by Timothy Ramey, two stolen vehicles from Canada sold and contacted the National (“NICB”) Insurance Crime Bureau locating assistance in a Canadian investigation. officer to aide in the Subsequent investigation Ramey, uncle, indicated his and his father tampering, were removing, altering selling VINs of vehicles and those cars the United States with new or Eight altered VINs. ve- bearing matching hicles VINs VINof vehicle owned the three Ramey suspects Carolina, were located in North one of which was registered appellant. July 2000, appellant’s

On 19 Davis seized and stored vehicle. At time, provided appellant Davis with a document that stated he seize, possess any was “authorized to take and motor vehicle or motor vehicle he reason to believe stolen or [which had] [was] IN COURT OF APPEALS THE destroyed covered, defaced, altered, an removed ser- which ha[d] to state went on document ial or identification number[].” officially “notify stored of a vehicle seized and DMVwould the owner days.” Nothing in of the seizure within 15 the location given indicates further written notice the record period. within in the VINs and other similar characteristics

Due to similarities Canada, appellant’s reported and the car stolen vehicle between car Ramey VIN from the stolen DMVconcluded had removed true similar, registered him from a Canada, replaced with a VIN appellant, it to who had subse- likely salvaged, vehicle, and sold *3 readily opposed on the observable VINs as to quently relied most engine. VINs elsewhere such as the frame checking the found September 2000, DMV vehicle over on 5 turned the to Accordingly, the Canadian Insurance, Farm the successor-in-interest to State car stolen. whom DMVconcluded the had been owner from payments 2001, appellant making on or about March ceased On security suit, seeking and Citifinancial filed agreement, note and the Appellant complaint the answered the the balance of amount owed. May third-party appellees 15 complaint against a on 2001. and filed summary appellant, judgment against moved which Citifinancial part denying in granted 2002. After the trial court on October third-party dismiss, appellees to the com- appellees’ motion answered summary judgment. granted plaint and moved for summary judgment on 20 November 2003. appellees’ motion for Appellant review this Court. seeks before only assignment error, appellant the trial court

In her asserts judgment favor of erred as a matter law Summary appropriate appellees. pleadings, is where “the file, on depositions, interrogatories, answers and admissions to any, genuine is no affidavits, if show that there together any party judg- entitled to a as to material fact and that is issue 1A-1, 56(c) (2003). “In § a matter of law.” N.C. Gen. Stat. Rule ment as motion, court must view all evidence ruling on such the trial non-movant, taking most favorable the non-movant’s light true, drawing facts as all reasonable inferences her asserted 606, 611, Acker, favor.” Glenn-Robinson v. (2000). (2003) governs issues § North Carolina General Statutes 20-108 component parts without manu- vehicles of vehicles arising from or OF APPEALS IN THE COURT INC. MESSER have numbers with manufacturer’s numbers that been facturer’s or person altered, a is changed, (a), or obliterated. Under subsection they knowingly if undertake certain guilty of a Class misdemeanor respect component of a vehicle actions with vehicle or has or been (“property”) bearing an identification mark number concealing misrepresenting the iden- modified “for the property tity” property. 20-108(a). Gen. Where the § Stat. designated to its VINor officers of have has such a modification probable (a), was a cause believe there violation subsection permitted possess are it. N.C. Gen. Stat. those officers to take immediately seizure, After officer 20-108(b). seizing must § notify owner, known, and DMVhas rightful DMVand the fifteen days notify person property all from whom was seized and of DMV. registration claimants with interest or title records person from whom 20-108(b),(c). § N.C. Gen. Stat. The notice to was must mail and must property seized be sent certified con- custody tain, alia, following DMV taken (1) inter information: person persons property; (2) of the the name and address of seized; (3) was that the from whom the statement “investigation provided § in” N.C. Gen. Stat. 20-108 seized as rightful and will owner either a determination be released altered, changed or identification number has not been oblit- satisfactory ownership presentation evidence of erated or *4 thirty person days of property if no other claims an interest within 20-108(c). If when mailed. N.C. Gen. Stat. another § the notice was interest, dispositional hearing property person an a for the claims may dispositional hearing This be permitted. before a court is Id. by within property either DMVafter the has come the commenced by any possessor property. custody of of the N.C. of one its officers dispositional hearing is to 20-108(d). of the § Gen. Stat. sold, be property the allow the court to order whether should DMV, disposed of. Id. destroyed, converted to the use of or otherwise evidence, by preponderance a of the establishing, of The burden respect property upon is of a violation with the occurrence ownership Anyone claiming to the 20-108(h). DMV.N.C. Gen. Stat. § satisfactory of property showing evidence own- bears burden ership. disposing No order of the 20-108(i). N.C. Gen. court § Stat. property was may person from whom the property issue unless the registration title in the seized all claimants with interest or postseizure hearing and ten provided (a) (b) DMV a records of are N.C. days’ postseizure hearing via certified mail. Gen. of the notice 20-108(f). § Stat. case,

In the instant the record is of evidence devoid that DMV requirements Gen. gave complying notice of N.C. however, non-compliance 20-108(c); Stat. DMV § asserts with 20-108(e) Stat. irrelevant Gen. Stat. 20-108(c) § Gen. is because N.C. § trumps provisions gives the other of N.C. Gen. 20-108and § Stat. it authority component part a seized motor vehicle or “retum[] satisfactory following presentation owner evidence of owner- ship disagree proposed reading We DMV’s of the statute. [.]”

First, person notify DMV have to would still from whom the property (c) was seized as mandated subsection even subsection (e) suggested Second, were construed in the manner DMV. DMV’s (e) construction of subsection would untrue the render notification required by person (c) subsection to the from whom property property seized that seized would be released satisfactory rightful presentation owner evidence of owner- ship “if person days no other claims an interest in within 30 Otherwise, hearing the notice regarding disposi- date is mailed. a may property] place juris- tion of seized take in a having court [the 20-108(c)(2)b. N.C. Gen. § diction.” Stat.

Moreover, proposed reading (e) DMV’s of subsection raise DMV, significant constitutional concerns. citing While McDonald’s Corp. Dwyer, sug- (1994), procedural process gests there can be no state argument due “legitimate property, lack claim entitlement” to the seized we opinion improperly are of the this view required restricts the property Dwyer, require interest. In our Court did showing property title to establish Id. The interest. Court stated party undisputed need not have title possession underlying disputes is sufficient: “Even if there are about validity title, of their this should have no effect on defendants’ standing constitutionality to challenge the of the statute. Defendants open possession property. are also in and full Accordingly, defendants’ interest cannot be without seized their consent process Id., 447-48, or due of law.” 338 N.C. at 450 S.E.2d at We 890. accordingly. hold *5 merely persuasive

Although it is not controlling, and see Authority City v. Housing Raleigh, Lorbacher of of App. 663, 675, 74, (1997), 493 S.E.2d note our we construction appellant’s process rights due under our state constitution accords approach adopted the United States Court for federal constitution: APPEALS

IN THE COURT OF v. MESSER INC. however, protection “property,” Fourteenth Amendment’s The only of undis- interpreted safeguard rights never been pro- broadly.to extend Rather, it has read puted ownership. been interest,”.... appellants “any The significant tection replevied goods deprived an interest were of such —the .... possession goods use of the and interest continued dearly possessory bought Clearly, goods, their interest in the protection invoke contract, was protected sufficient the Due Process Clause. (1972). 2d Shevin, 86-87, L. Ed. 407 U.S.

Fuentes pur- she case, appellant’s instant evidence tended to show In the possessed knowledge that it was stolen. the car without chased property interest constitutes, mind, in our a sufficient showing This appel- argument, protection by constitution. DMV’s that to merit our she not show right hearing or a because could lant had no notice owner, places cart paramount the true right to the car over the horse: before showing depend upon not an advance right to be heard does protests surely prevail hearing. at To one who one will process law, it is due taking of his without

against particular process of law say in his case due answer to no adequate he because had no have to the same result led procedural It is to invoke the enough merits. defense prop- significant that a Fourteenth Amendment safeguards a hear- ultimate outcome of erty stake, interest is whatever the at possession and use of right to ing on the contractual continued goods. marks (internal quotation Fuentes, U.S. 32 L. Ed. 2d at 574 at erred Accordingly, we hold omitted). and citations proceedings for further remand opinion. with this inconsistent

Reversed.

Judge GEER concurs. opinion. separate with a

Judge STEELMANconcurs *6 CITTFINANCIAL, App. N.C.

STEELMAN, Judge concurring. entirely agree majority I opinion matter, in this but write separately to increasingly frequent address the appen- abuse of the dix to appellate briefs case, counsel. In this counsel for the Department Transportation (DOT) portion attached as a appendix brief, to its pages fourteen of material from five different Internet sites pertaining to vehicle identification numbers for Chevrolet argued automobiles. DOT this material in its brief to bol- argument ster its question that the vehicle in inwas fact the vehicle stolen from Canada. This matter was decided DOT’Smotion for judgment, which granted on 20 November 2003. None of this material is contained in the record on appeal. All of the Internet material May bears the date of 17 2004,two days prior to the filing of DOT’sbrief in this matter. 28(d)

Rule Appellate of the Rules of governs appen- Procedure App. dixes to briefs. R. 28(d). P. Subsection (d)(l)c allows an appellant reproduce appendix in an the following: por- “relevant statutes, tions of rules, regulations, study required of which is questions presented to determine in the brief.” expressly While not stated in 28(d), appear Rule provision that this would be equally applicable appellees as well. None of the Internet material appellee’s appendix contained in “statutes, constitutes rules, regu- face, lations.” On their it is clear the documents do not come from operated by government website agency or the manufacturer of Chevrolet automobiles, but private rather are provi- sites. There is no sion in Rule 28(d) allowing for the inclusion of material found on the appendixes Internet in briefs.

“This held, Court has improper ‘it party] ... to attach a [is] [for document not in permitted the record and not under N.C. R. R ” 28(d) appendix in an to its brief.’ Bishop, Duke Univ. v. App. 545, 547, 507 S.E.2d (1998) (quoting Horton v. New Co., South Ins. 265, 268, 468 S.E.2d 858 (1996)). The rationale for this rule is clear. appellate The role of an court is to rulings review the court, of the lower not to consider new evidence or matters that were not before the trial court. If permitted, this were appellate process would never end.

Appellate counsel should requirements take care to follow the 28(d) Rule in placing appendix. material in an comply Failure to subjects this rule counsel to sanctions this court.