*1 the Motion for Class Certification was not

improper.

Reversed in part and affirmed in part. CO.,

FRANKLIN INVESTMENT

INC., Appellant, COLUMBIA, Appellee.

DISTRICT OF

No. 82-187.

District of Columbia of Appeals. Court

Argued Jan.

Decided June Lipton, Md.,

Bernard D. Silver Spring, appellant.

Lutz Prager, Alexander Asst. Corp. Coun- sel, D.C., Washington, with whom Judith Counsel, Rogers, Corp. W. Charles L. Reis- chel, Counsel, Deputy Corp. H. Steven Leventhal, Corp. Counsel, Asst. Wash- D.C., brief, ington, on appellee. TERRY, Before BELSON Associate PAIR, Judges, Judge, Associate Retired.

BELSON, Judge: Associate This is an Franklin Investment appeal an order of the trial Company, Inc. from replevin court action for dismissing its of Columbia. The trial argument court rejected appellant’s was not own- er’s fees order of an impounded to secure the release vehi- *2 448 seeking

cle on it a lien. immediate of the which held See towing, storage, that 40-703(k) (1981). judgment We reverse. and a § void” as and notice fees were “invalid and it, a lienholder. See I (4). moved to dis- 40-703(k)(3), Appellee § Company, Franklin Investment Inc. complaint. granted The trial court miss the (Franklin), company sales finance licensed motion, holding towing that appellee’s Columbia, incorporated in District of constituted liens su- held a contract for a secur- conditional sales security in- perior mortgagee’s to a chattel ity Mustang pur- in a Ford II interest terest.2 Rey chased Marion Edwards on Febru- by filed a motion to alter promptly Franklin 16, ary security 1979. The interest was judgment. or amend the trial court’s 5,1979 recorded on March with the District motion, 59(e). In Frank- Super.Ct.Civ.R. its of Columbia Bureau of Motor Vehicle Serv- lin contended that even if § ices. towing created a valid 1, 1980, Edwards defaulted February On should limit storage charges, court on his and in payments May loan the amount which the District of Columbia sought Franklin the vehicle. $150, storage fees to is able collect Franklin, Unbeknownst the vehicle was placed private limit on a monetary the same impounded by the D.C. keeper’s lien for under D.C. garage May on or before 1980. (1981).3 38-202(a), -205 Code §§ 18, 1980, On June Franklin received notice Franklin’s motion The trial court denied by Metropolitan mail from the Police De- noting judgment. to alter or amend While partment it for the first time informing fees, equiva- that a limit on $150 impounded; that the vehicle had been that day period lent 50 notice it police custody would be more than unreasonable, would not be the court found 1980; that if days as of June private garage keeper’s provisions that certain fees were impounding 38-202(a), support -205 did not §§ June the vehicle paid by Franklin towing of a limit on imposition $150 would not be released but would instead be 40-703(k). under Frank- storage charges § property “considered abandoned and dis- appeal. lin this then noted law.” posed provided by of as See D.C. its in- seq. Upon 4-152 et § police Franklin was informed quiry, II towing, stor- the amount due for In District of Columbia v. age, and notice costs $263.00.1 Co., (D.C.1979) 404 A.2d 536 amount, (Franklin I), we addressed the issue Rather than this security in- mortgagee’s whether a chattel replevin against appellee filed an action in 64-11, prevailed over 26, 1980, terest in an automobile Super.CtCiv.R. on June $50.00 the basis that those The were itemized as follows: ant’s motion to dismiss on however, towing Transporta- appeal, by Department applied. Dis- fee for tion; sections On charges; per day storage acknowledged $2.00 each $3.00 has trict of Columbia and Frank- directly for two certified letters to Edwards lin, provisions are not clear whether those the Police $20.00 and a fee for involved, upon placed primary reliance and has Department. 40-703. court, In the trial the District of Columbia $150.00 limit on fees would re- effect the 3.In argument placed main reliance notify quire a lienor of the question property was abandoned within 50 of his secured vehicle provisions of D.C.Code and that therefore charge daily storage light days in of the 4-159, (recodified (1973) as D.C.Code -160 §§ fully $3.00, be reim- wished to if the District (1981) disposition of controlled 4-160-161 §§ storage. bursed for judge granted the defend- the case. The trial obtaining (A)(i) depositing District of interest of the collateral Columbia’s unpaid Superi- owner’s for his 40-603(k) tickets under D.C.Code of the District of Columbia or Court 40-703(c) (the predecessor violation; answer for- each 40-603(k)(3), the (1981)). Under “owner po- (ii) Depositing the amount such authoriz- [of vehicle] penalty for each infrac- tential fine and *3 person” permitted ed was to secure release tion, outstanding or for which there is no by depositing of the vehicle “the collateral violation no- unsettled traffic otherwise Superior for his in warrant; and tice, of infraction or notice of to answer Court of the District Columbia of the fees re- (B) Upon payment the for for which there is an each violation section. paragraph of this quired by or otherwise unsettled traffic of an vehi- (4) The owner immobilized violation notice or warrant.” We held that subject booting to a fee of $25 cle shall be the “owner ... or other duly authorized of immobilization. The owner for such person” contemplated by statutory pro- impounded motor vehicle shall be sub- owner, the “registered vision included or his $50, plus a fee for ject towing to a fee of legal representative or person a authorized storage. The owner of an immobilized vehicle,” by operate the owner to but shall be impounded vehicle which was mortgagee, not a chattel “even one whose subject plus to a total fee of a fee for right to has accrued on default $50 storage.... conditional vendee.” Id. at 540. We to asked address the central issue in Franklin previously, As noted presented on this whether appeal, namely, words ... or other we held that the “owner appellant’s security impound- interest in an for of duly person” purposes authorized prevails ed vehicle over the District’s inter- un parking for violations posting collateral obtaining payment towing est in of include a 40-703(k)(3)(A) der did not storage fees incurred as a result of the Nevertheless, the Dis mortgagee. chattel impoundment. us to construe the same urges trict now After the occurrence of the facts which term, per or authorized duly “owner ... gave rise to Franklin before issuance but son,” purposes paying towing for case, of our opinion in that the District of resulting from Columbia Council amended § (B) subsection violations under parking adoption of the District including section as of the same Adjudication Traffic Act of 1978. 25 D.C. District maintains that mortgagee. The section, amended, Reg. as holding of Franklin I the rationale for the 40- has been recodified as D.C.Code § obliged person that while the 703(k) (1981). The statute retains amended culpable in implicated tickets was ... or previous reference “owner behav behavior, culpable inference of “the well as the duly person” other authorized as party to a secured ior does not attach requirement ap- for court collateral after the accrues right whose be in order to secure pearance deposited I, supra, 404 parking violations.” addition, In release of a vehicle. contends District also at 541. The require- amended statute makes certain impound of an impound- concerning ments of the chattel to the benefit ed vehicle inure can be release ment and fees before place a safe mortgagee by providing reads as follows: secured. The statute now thereby protect vehicle and storing (k)(3) The owner of such damage. from theft or ing it vehicle, autho- duly immobilized has arguably District’s While the repos- permitted rized shall be person, merit, true it still remains some the vehicle sess or to secure the release of have to accord it we adopt order to would upon: notice to a chattel trigger requisite two defini- to the word “owner” different impoundment. tions in the same subsection of the control- ling (1) “registered statute: owner” Here, purposes posting paying collateral and of the initial im- Franklin no notice gave fines, (2) “registered owner penalties or many was notified poundment. Franklin paying purposes lienholder” later, vehicle had been after weeks fees. custody transferred to the 40-703(k)(3), (4). Clerk, incurred already that it had $263.00 notice fees. Because towing, storage and two give the same term We decline charges, specifical- amount of such the total sub- different definitions within the same every pass- with will accumulate ly storage, Instead, section of the statute. we adhere the vehicle is during which day ... or other to the definition of “owner seriously custody, question District’s adopted that we person” be afforded un- process due would whether *4 the lienholder. which excludes pro- of the statutes der the construction impound- “the As we noted in Franklin any in absence of the posed by ensuring is directed toward remedy ment notice to a chat- for “reasonable” provision in culpable party the of the v. W.T. Grant mortgagee. Cf. Mitchell tel his violations.” court to answer for 1895, 40 L.Ed.2d Co., 600, 94 416 U.S. S.Ct. penalties of fines and Id. at 540. Collection constitutionality of (1974) (upholding 406 the attributable to violations sequestration procedure); Louisiana object of the the ultimate owner remains Shevin, 67, 92 407 U.S. S.Ct. Fuentes v. statute, and and the uncon- (1972) (holding 1983, 32 L.Ed.2d 556 pursuit District’s were incurred in the fees Pennsylvania pre- Florida and stitutional goal. legislative of that v. replevin procedures); Sniadach judgment 395 89 S.Ct. Corp., Finance U.S. Family that after argues District also The (1969) (holding uncon- L.Ed.2d 349 23 impounded by an automobile has remained proce- garnishment Wisconsin stitutional a Transportation the Department dures). which the owner period during substantial argues that finally District The forward to failed to come or lienholder has makes scheme of § it, the vehicle as it is fair to treat claim the tow it, effect, regarding a lienholder in provi it to the subject and to “abandoned” priority fees, gives and property of abandoned disposition sions for We Franklin, lienholder. prior over Department Police Metropolitan “a axiomatically I that in Franklin noted 4- in D.C.Code Property § Clerk set forth (‘first in legal right prior a prior gives lien with this difficulty et Our seq. 153 statute where time, right’), except first at statutory scheme is that rule.” Id. at law the common varies Department requires that the issue here Hechinger v. District of Columbia also of the im- send notice Transportation need (D.C. 160 Inc., A.2d 197 Properties, im of the to the owner only Malakoff v. Wash 1964). Subsequently, mortga vehicle, to the chattel pounded (D.C.1981), 435 ington, 434 A chattel 40-703(k)(2). D.C.Code gee. § pro are afforded lienholders prior held to notice entitled statutorily is claims the District’s tection even transferred the vehicle has been only when intent “legislative unless the for taxes prior Property of the Clerk custody to the absolutely liens for taxes claims or make 4-161(e). sale. See D.C.Code § from a appear[s] preferred which specified time within There is no statute.” of the construction strict trans must pay- here that argues District 40- The under vehicle which it seizes § fer a is not towing and to ment of in order 703(k) to the Clerk per se but rather a condition Un I statutory provision, was another D.C. precedent 159(d)(2) (1973) release of Code vehicle. as D.C. [recodified Nevertheless, recognize we must the policy 160(d)(1) & § 4— of protecting parties prior 4-161(e) (1981) who have ], creating equally sig- liens under Code, the Uniform Commercial nificant requirement repossession of an (1981), 28:9-503 and of permit- impounded by automobile the District of ting others with claims Columbia for traffic property viola- precede them where only legislative tions — intent to bring result entirely about that fees.1 clear. District of As majority correctly notes in the Co., supra, 404 A.2d at 540. bar, case now at the District of

We are cognizant legitimate of the 40-603(k)(3). inter- Columbia Council amended est of the District of Columbia in The new securing enactment as D.C.Code [recodified expenses reimbursement for 40-703(k)(3) (1981)] brings together it incurs in § impounding storing disparate automobiles. parts provisions Our function, however, is to construe the requirements statu- makes clear the dual which tory scheme that are is before us. The order precedent repossession: conditions appealed from is owner of such immobi- vehicle, lized Reversed and remanded to the trial court person, permitted shall be for further proceedings consistent with this to secure the upon: release opinion. *5 (A)(i) depositing of the collateral PAIR, Judge, Retired, Associate dissent- required for his Superi- ing: or of Court Columbia to violation; (ii) answer for each deposit- I, In Franklin supra, 404 A.2d at potential the amount of fine and considered “objects and purposes” of a penalty for each infraction ... and statutory pellucid scheme far less than the (B) Upon the of the fees re- enactment brought question. now into Un- quired by (4) of this paragraph section der 40-603(k)(3) (1973), there [impoundment, towing storage costs], and appeared single requirement be a repossession of an automobile impounded by (emphasis Consequently, supplied). the District of Columbia for outstanding present statutory scheme creates a traffic “owner” violations: or “other lien in favor of the of Columbia on District duly authorized person” to any automobile deposit Superior collateral in Court to an- Paragraph (4) traffic violations. Section held, first, swer for each We (B) infraction. is with principally pay- concerned single provision this did not create a ment costs rather tickets, unpaid second, for the significant than These parking tickets. because apparent was to insure purpose proceeds costs are offset plainly culpable court, party’s appearance any from sale of automobile “innocent” mortgagee chattel was not an in effective traffic pounded by the District person” “owner” or for the “duly 161(e) authorized administration. § 4— I, I, (1981).2 supra, 404 A.2d at purposes supra, of the statute. Franklin See Franklin (“essential 404 A.2d at considered in Frank- 540. Not characteristic” I, provision supra, 2. This into effect if the owner 1. In Franklin comes costs, paid but did contest these instead The automobile is fails to claim the vehicle. police property Although publicly clerk. them to the or abandoned then considered lost particular opinion provi- does not cite supra, 404 A.2d at auctioned. See Franklin paid, sion under which the fees examina- 538 n. 4. indicates tion of the 1973 4-§ 159(d)(2) is of relevance. right lien is to enforce lien in- possible impoundment, sale of risks of pay- Thus, volved property). having a lien been incurred, ment of the thereby as a created, appellant’s security interest under doing cost of Certainly they business. are article 9 of the Uniform Commercial Code in far better offset costs of (UCC) prior in time to the Dis- merely impoundment than the District of Columbia lien, trict’s see D.C.Code 28:9-103 et seq. government, whose taxpayers pro- have no (1981), right. but not Article prior 9 does phylactic recourse. not, course, apply to state liens respectfully I dissent. that arise by operation gener- law. See Summers, ally, White & Uniform Commer- (2d 22-2 1980).

cial Code ed. law principles govern

Commercial con-

struction of the term “owner” “or other person.” UCC, Under the default a conditional purchas- sales

er, the secured party, mortgagee, or chattel has absolute right possession of the col- STAMENICH, al., Appellants, Zlatan et (1981); lateral. D.C.Code 28:9-503 540; supra, 404 A.2d at District Bank, of Columbia v. Hamilton National 76 Mirjana MARKOVIC, al., Appellees. et (D.C.1950). mortga- The chattel No. 81-1194. becomes, effect, gee thereby the absolute “owner” “person possess” authorized to Appeals. District of Columbia Court of Thus, the collateral. when Edwards de- faulted on his loan payments, Sept. Submitted Company was vested with an ab- Decided June right solute of the 1974 Ford II, Mustang subject only to the lien of the towing, impound-

District of Columbia for

ment, fees. From this must *6 plain language

follow that under the (1981), Franklin,

order right, to exercise its as a precedent

condition to the District of towing, impound-

Columbia its storage.

ment and 4-

161(e)(1) (1981). may

Whatever now be said of Franklin inescapable govern- fact is that the law the case at bar creates an en-

forceable lien on behalf of the District of superior to that of Franklin In- it is true that Company. While entitled to notice

the chattel is transferred from

only when to the Clerk for sale and no stat- transfer, by

ute the time of such specifies reasoning can it be process legitimate

no basically wrong

concluded that it was to assume the

require mortgagees