930 P.2d 473
No. 2 CA-CV 95-0242.Court of Appeals of Arizona, Division Two, Department A.
June 20, 1996. Review Denied January 14, 1997.
Appeal from the Superior Court, Pima County, Cause No. 304968, Bernardo P. Velasco, J.
Hirsh, Davis Piccarreta, P.C. by Robert J. Hirsh and David L. Bjorgaard, Tucson, for Plaintiff/Appellant.
Thomas J. Berning, City Attorney by Ronald M. Detrick, Tucson, for Defendant/Appellee City of Tucson.
Grant Woods, Attorney General by Sylvia E. Goodwin, Tucson, for Defendant/Appellee State of Arizona.
PELANDER, Presiding Judge.
Plaintiff/appellant Adage Towing Recovery, Inc. (Adage) operates a vehicle towing, salvage and storage business. Under contracts with certain private property owners, on the property owner’s request Adage is obligated to tow vehicles improperly parked on the private property in violation of posted rules and regulations. Adage has supplied its private property owner/clients with signs which state:
Vehicles parked in violation of property rules and regulations will be towed and stored at owners [sic] expense, creating a lien on vehicle for the charges of $65 impound, $2.50 per mile, $7 per day storage. Parking is a consent to a lien on my vehicle.
Adage Towing Recovery, Inc. 888-1220 3343 W. Sunset RD. A.R.S. 9-499.05
Adage filed this action for declaratory relief under A.R.S. §12-1831 et seq., naming the state and the City of Tucson as defendants. Adage sought inter alia a ruling from the trial court that the above-quoted sign, when combined with other clearly visible signs posted on private property and indicating the parking rules and regulations for the property, is sufficient to create a binding implied contract, including a consensual lien, between Adage and a vehicle owner who parks in violation of the posted rules and regulations. Framing the issue as “whether
an owner’s motor vehicle can be subject to a lien in favor of a towing company where the vehicle is parked in violation of privately posted parking regulations and is removed from the private property pursuant to a towing requested by the property owner,” the trial court ruled as follows:
1) A.R.S. 9-499.05 does not permit a statutory basis for the creation of a lien upon towed and/or stored motor vehicles removed from private property pursuant to this statute.
2) Arizona common law does not permit the creation of a lien upon towed and/or stored motor vehicles removed from private property pursuant to A.R.S. 9-499.05.
3) In the absence of an ordinance pursuant to A.R.S. 9-499.05(A), an owner of private property may set forth the financial consequences of parking without permission on the owner’s property.
4) A sign that complies with A.R.S. 9-499.05
creates a legally binding contract between the towing company and the parking violator which would permit a towing company to seek relief for its contractual damages.
The court later clarified its decision by rejecting Adage’s contention that a “binding implied contract can be created with a sign including any provisions . . . . which includes the provision of an implied lien,” ruling instead that “[t]he posting of a sign stating a lien shall be created does not create a lien, express or implied, for towing or storage charges on the towed automobile.” This appeal followed.
Adage contends that, as a matter of law, the above-quoted sign (assuming proper posting, visibility and readability) can create a binding contract, including an implied, consensual possessory lien, between Adage and parking violators whose vehicles are impounded and stored by Adage at the request of property owners. Because the question is strictly one of law, our review is de novo. We will affirm the trial court’s decision if it is correct for any reason. Rancho Pescado, Inc. v. Northwestern Mut. Life Ins. Co., 140 Ariz. 174, 178, 680 P.2d 1235, 1239 (App. 1984).
In Capson v. Superior Court, 139 Ariz. 113, 677 P.2d 276
(1984), our supreme court addressed the issue of whether a towing company had a lien on a vehicle for towing and storage charges when the vehicle was towed away for having been parked on posted private property without permission. In that case, “[s]igns prohibiting parking in the area indicated that violators’ automobiles would be towed away and a $75 towing fee incurred.”Id. at 114, 677 P.2d at 277. In concluding that the towing company had no valid lien, the court noted that “[a] common law lien arose only when some value was imparted to the automobile by `performing work or furnishing material’ for the vehicle.” Id.
at 115, 677 P.2d at 278, quoting Candler v. Ash, 53 Ohio App.2d 134, 136, 372 N.E.2d 617, 619 (1976). The court then held that “[a]ny lien for towing or storage of an automobile in Arizona must have a statutory basis.” 139 Ariz. at 115, 677 P.2d at 278 See also Currie v. Dooley, 132 Ariz. 584, 586-87, 647 P.2d 1182, 1184-85 (App. 1982); Fitzhugh v. City of Douglas, 122 Ariz. 599, 600, 596 P.2d 737, 738 (App. 1979) (“The existence of [a lien for storage] is strictly statutory and, being in derogation of the common law, such a right is entirely conditional on the statutory wording.”).
Adage acknowledges that there is no specific statutory or common law basis for the lien it seeks to impose. It contends, however, that under general contract principles its sign creates an enforceable lien for unpaid charges against an improperly parked vehicle which it tows and stores. Adage’s reliance
on Capson for that proposition, however, is misplaced. Although the court in Capson stated that “[t]here must be an express or implied agreement between the owner of the vehicle and the person doing the services” for a possessory, consensual lien to attach, 139 Ariz. at 116, 677 P.2d at 279, nothing in the decision supports Adage’s contention that its sign, as a matter of law, can create such a lien. Indeed, the supreme court not only found no common law possessory lien in Capson, it also noted that “even if there were an implied agreement to pay $75 for towing, there is no statutory basis for a lien to secure the payment of that amount.” Id. at 115, 677 P.2d at 278.
The court in Capson also stated that “`[a] mere possessor has no authority to create a lien against an automobile without the owner’s consent.'” Id. at 116, 677 P.2d at 279, quoting Kunde v. Biddle, 41 Ill. App.3d 223, 226, 353 N.E.2d 410, 413 (1976). Neither Adage’s sign nor a person’s improperly parking on private property in violation of posted signs establishes, as a matter of law, the owner’s consent to a lien. Such consent cannot be “reasonably implied” under these circumstances, Associates Fin. Serv. Co., Inc. v. O’Dell, 491 Pa. 1, 5, 417 A.2d 604, 606
(1980), particularly where there are no “reasonable grounds to believe that the owner would have consented had he been asked” and where “it is obvious that the owner would not have consented.” Apartment Owners and Managers Comm. v. Brown, 252 Pa. Super. 539, 547, 382 A.2d 473, 477-78 (1977), aff’d in part and rev’d in part on other grounds, 487 Pa. 548, 410 A.2d 747
If any lien based on signage should be created or recognized in this context, we believe that determination is best left to the legislature. As a Connecticut court has stated:
The court should not depart from the established common law of this state and of other jurisdictions so as to authorize or to create a lien in favor of the [towing company] and adverse to the [vehicle owner]. Such action would involve the balancing of conflicting economic interests and property rights. . . . A change in the law in this area, if it is to be effected, is the task of the legislature, not the courts. In the regulation of business transactions, “the legislature . . . has broad discretion in passing on the interest to be protected and the method to be employed.”
Halloran v. Spillane’s Servicenter, Inc., 41 Conn. Sup. 484, 495, 587 A.2d 176, 182 (1990). See also Younger v. Plunkett, 395 F. Supp. 702, 714-15 (E.D.Pa. 1975); Kunde, 41 Ill. App.3d at 228, 353 N.E.2d at 415.
Through a cross-issue raised in its answering brief, the city attempts to challenge and overturn the trial court’s ruling that “[a] sign that complies with A.R.S. 9-499.05 creates a legally binding contract between the towing company and the parking violator which would permit a towing company to seek relief for its contractual damages.” Because the city essentially seeks to modify the trial court’s decision in a manner that would “lessen the rights of the appellant,” the city was required to cross-appeal from that aspect of the trial court’s ruling and failed to do so. Ariz. R. Civ.App. P. 13(b)(3), 17B A.R.S. Accordingly, we do not address that issue. See Lewis v. Oliver, 178 Ariz. 330, 339, 873 P.2d 668, 677 (App. 1993), cert. denied, 513 U.S. 929, 115 S.Ct. 319, 130 L.Ed.2d 280 (1994).
LIVERMORE, J., and CHARLES E. ARES, J. Pro Tem., concur.
1. Restrictions on parking.
2. Disposition of vehicles found in violation of the parking restrictions.
3. Maximum cost to the violator, including storage fees and any other charges that could result from the disposition of a vehicle parked in violation of parking restrictions.
4. Telephone number and address where the violator can locate his vehicle.