2020 Georgia Code
Title 51 - Torts
Chapter 10 - Injuries to Personalty
§ 51-10-1. Right of Action for Deprivation of Possession of Personalty

The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.

(Orig. Code 1863, § 2965; Code 1868, § 2972; Code 1873, § 3026; Code 1882, § 3026; Civil Code 1895, § 3885; Civil Code 1910, § 4481; Code 1933, § 105-1701.)

- Criminal penalties for offenses involving theft, T. 16, C.8.

Right of action to recover personal property, § 44-12-150 et seq.

- For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 51-10-1 provides an adequate post-deprivation remedy for seizure and retention of personal property without due process of law. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

Any act which deprives owner of personal property of possession is tort for which the injured party may maintain action. Thombley v. Hightower, 52 Ga. App. 716, 184 S.E. 331 (1936).

When property taken was personalty, and alleged to have been taken without owner's consent, such action is tortious and a trespass for which damages may be recovered. Lowery v. McTier, 99 Ga. App. 423, 108 S.E.2d 771 (1959).

O.C.G.A. § 51-10-1 embodies the common-law action of trover and conversion. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

Action of trover is action for recovery of possession of chattels belonging to plaintiff. Youngblood v. Duncan, 49 Ga. App. 300, 175 S.E. 411 (1934).

- Any distinct act of dominion wrongfully asserted over another's property in denial of one's right or inconsistent with it is a conversion. Bromley v. Bromley, 106 Ga. App. 606, 127 S.E.2d 836 (1962).

Possession of property with a claim of title adverse to that of the true owner is sufficient evidence of a conversion. Bromley v. Bromley, 106 Ga. App. 606, 127 S.E.2d 836 (1962).

- Trial court properly granted a judgment on the pleadings for a limited liability company (LLC), as a president failed to allege a breach of fiduciary duty by the LLC. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Trial court erred in granting a judgment on the pleadings for two founders of a limited liability company and a corporation as a tort action could be based on a duty imposed by law, a president arguably had a breach of fiduciary duty claim, and the fact that the allegedly converted items were intangible did not bar the conversion claim; the claim that the president had abandoned the conversion claim as to the corporation was rejected as it was based on a conclusory allegation. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

- Trial court properly found a couple liable for converting personal property belonging to an owner with whom the couple were involved in a dispute over certain real property since the couple wrongfully had a salvage company dispose of the personal property instead of complying with O.C.G.A. § 44-7-55(c), by placing the property at the front of the lot. However, the damages award of $192,487.13 in favor of the owner was vacated as the owner's opinion testimony as to the value of the owner's property was insufficient for valuation purposes. Washington v. Harrison, 299 Ga. App. 335, 682 S.E.2d 679 (2009), cert. denied, No. S09C2052, 2010 Ga. LEXIS 45 (Ga. 2010).

- O.C.G.A. §§ 44-12-20 and51-10-1 did not authorize a mortgage borrower to bring a claim against a loan servicer for theft by conversion based on criminal statutes; the criminal statutes did not create a private right of action, and the borrower was limited to a tort claim for conversion. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366 (N.D. Ga. 2012).

- There can be a conversion of specific money as well as chattels. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

A plaintiff in an action for conversion of specific money may recover lost interest. Punitive damages are also recoverable. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

Tort of conversion applied to specific money since the money was identifiable and traceable. Hot Shot Kids Inc. v. Pervis (In re Pervis), 497 Bankr. 612 (Bankr. N.D. Ga. 2013).

Debtor's retention of another shareholder's share of funds constituted conversion because the other shareholder was entitled to the funds; the debtor received the debtor's share, held it, and spent it; the shareholder demanded the money; and the debtor refused to return the money. Hot Shot Kids Inc. v. Pervis (In re Pervis), 512 Bankr. 348 (Bankr. N.D. Ga. 2014).

Trespass to personalty may be continuous and it consists of any unlawful deprivation of its possession; this can be done by wrongful levy as well as by a wrongful sale. Atlantic Co. v. Farris, 62 Ga. App. 212, 8 S.E.2d 665 (1940).

- The true owner of personal property, which has been stolen from the owner, may maintain the owner's action in trover against one who purchases the same from another and pays to that person the purchase price thereof, although the defendant has no knowledge that the property has been stolen and in good faith believes that the person selling the property to the defendant has the right to dispose thereof; and the subsequent sale of such property by the defendant to a third person, before the acquisition of any knowledge that the property was stolen property, constitutes a conversion thereof by the defendant. Briscoe v. Pool, 50 Ga. App. 147, 177 S.E. 346 (1934).

O.C.G.A. § 51-10-1 covers the unauthorized seizure of personal property by police officers. Byrd v. Stewart, 811 F.2d 554 (11th Cir. 1987); Lindsey v. Storey, 936 F.2d 554 (11th Cir. 1991).

District court erred in denying a motion for leave to amend a complaint by buyers of a car at an auction to include a state law claim for conversion under O.C.G.A. § 51-10-1 based on a local detective seizing the car from the buyers, claiming that the car was stolen; the buyers were not required to physically resist turning the vehicle over to the detective. Pierce v. Clayton Cty., 717 Fed. Appx. 866 (11th Cir. 2017)(Unpublished).

- O.C.G.A. § 51-10-1 authorizes the recovery of damages when a government official, without lawful authority, has temporarily deprived an individual of his or her property. Grant v. Newsome, 201 Ga. App. 710, 411 S.E.2d 796 (1991).

Pretrial detainee's 42 U.S.C. § 1983 federal due process claims concerning the loss of the detainee's personal property by prison officers was dismissed upon summary judgment because the detainee could pursue the claims pursuant to O.C.G.A. § 51-10-1 as the underlying incidents concerning the loss of theft of the detainee's property did not appear to be the result of an established state procedure. Price v. Busbee, F. Supp. 2d (M.D. Ga. Feb. 21, 2006).

In a 42 U.S.C. § 1983 case when: (1) a pro se state inmate alleged that prison employees confiscated and destroyed the inmate's personal property; (2) the inmate did not allege that the confiscation was pursuant to established state procedure; and (3) O.C.G.A. § 51-10-1 provided the inmate with a post-deprivation remedy in state court, there was no Fourteenth Amendment due process violation; the complaint was dismissed as frivolous pursuant to 28 U.S.C. § 1915A. Poole v. Hart, F. Supp. 2d (M.D. Ga. Apr. 24, 2007).

Trial court erred in refusing to allow a prison inmate to proceed on a state law conversion claim against the Georgia Department of Corrections under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because the inmate stated a claim for conversion against the Department under the GTCA; the inmate alleged that prison officials wrongfully confiscated the inmate's personal property contrary to the Department's Standard Operating Procedures. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

Trial court did not err in disallowing a prison inmate to file a conversion claim against a warden and corrections officers under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because their actions were clothed with official immunity under the GTCA, O.C.G.A. § 50-21-25(b), since they were acting within the scope of their official duties when they confiscated the inmate's personal property; the inmate acknowledged that the Georgia Department of Corrections had to be named as a defendant, which necessarily amounted to a concession that Department employees were not proper defendants, and their alleged tortious conduct occurred while they were acting within the scope of their official duties. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

- Trial court did not err in denying property owners' motions for a directed verdict and for judgment notwithstanding the verdict on a limited liability company's (LLC) counterclaim for conversion, which was predicated on the owners' disposal of pipe fixtures the LLC owned, because the evidence was sufficient to support the LLC's counterclaim for conversion; the owners exercised dominion and control over the pipe fixtures by having the fixtures removed from the owners' property and disposed of at a landfill, and even if the LLC acted wrongfully by depositing and storing the pipe fixtures on the owners' property, there was evidence that the owners failed to exercise due care in removing the expensive fixtures by having the fixtures dumped at a landfill with no consideration given as to the fixtures ultimate fate. Parris Props., LLC v. Nichols, 305 Ga. App. 734, 700 S.E.2d 848 (2010).

The federal Employee Retirement Income Security Act, 29 U.S.C. § 1051 et seq., provides an exclusive remedy and clearly preempts state law claims such as claims for conversion and conspiracy to violate applicable ERISA statutes, which are based in tort, which in turn means they must be considered to be based on state law. Chambers v. Kaleidoscope, Inc., 650 F. Supp. 359 (N.D. Ga. 1986).

Fact that person removing another's property may be police officer does not operate to change rule of this section, if the officer's action in so doing was not authorized by law or some valid municipal ordinance. Vaughn v. Glenn, 44 Ga. App. 426, 161 S.E. 672 (1931), aff'd, 178 Ga. 30, 172 S.E. 28 (1933).

When, a chief of county police, acting through a deputy, without lawful warrant or authority other than the badge of office, seizes and carries away from the possession of another an automobile, a suit in trover by such person against the chief of county police is not a suit against the county or state. Norred v. Dispain, 119 Ga. App. 29, 166 S.E.2d 38 (1969).

Since an automobile, was in an inoperable and unrentable condition at the time it was taken by the police, and was in the same condition, or worse, when returned to the plaintiff upon the plaintiff giving a bond therefor, the defendant cannot avoid liability for rental by unlawfully refusing to surrender possession of the property to the plaintiff and thus preventing the property from being repaired and placed in a rentable condition. Norred v. Dispain, 119 Ga. App. 29, 166 S.E.2d 38 (1969).

- A garnishment filed by an attorney for a lender did not constitute conversion of the bank account since the garnishment was a temporary seizure by legal process. Taylor v. Gelfand, 233 Ga. App. 835, 505 S.E.2d 222 (1998).

- Summary judgment for finance company was affirmed as an individual's conversion claim was barred by judicial estoppel since: (1) the individual represented in Chapter 7 bankruptcy proceedings that the individual did not have any contingent or unliquidated claims; (2) the individual knew when the bankruptcy petition was filed that the individual's car had been taken without the individual's permission; (3) the bankruptcy trustee accepted the individual's representations as true for purposes of discharging the individual; and (4) any successful pursuit of the claim would allow the individual to realize gains inaccessible to the creditors. Zahabiuon v. Auto. Fin. Corp., 281 Ga. App. 55, 635 S.E.2d 342 (2006).

- Trial court erred in entering judgment on the pleadings for the defendants as, while in a conversion count, a chief executive officer arguably attempted to create a tort claim from a breach of contract, the officer alleged that the defendants owed a fiduciary duty. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

- In a case dealing with a sale and repossession of a business, summary judgment and judgment on the pleadings were properly granted in favor of the buyer on the buyer's breach of contract, trespass to personal property, and conversion claims as the sellers' claim of a breach of an alleged oral agreement that the buyer obtain a liquor license, business permits, and insurance in the buyer's name was meritless because there was no evidence that the oral agreement changed the requirement that the sellers obtain the buyer's written consent to remove equipment from the business premises, or that it added new provisions allowing the sellers to evict the buyer and repossess the business and all of the business's assets upon a breach of the oral agreement. Caldwell v. Church, 341 Ga. App. 852, 802 S.E.2d 835 (2017).

- Summary judgment was not warranted because a couple could be liable to an owner for conversion under O.C.G.A. § 51-10-1 if it was true that the couple lied regarding the whereabouts of the owner's belongings and that the couple sold some of the owner's possessions. Santiago v. Cauley, F. Supp. 2d (S.D. Ga. Dec. 6, 2005).

Deputy was not entitled to summary judgment on a conversion claim because the deputy admitted to taking the plaintiffs' camera without a warrant, while the plaintiffs' car was impounded, which raises the issue of unlawful possession. Moreover, the circumstances under which the impounding occurred, the alleged wrongful arrest of the plaintiffs', only add to the inference of unlawful possession of the plaintiffs' property. Carter v. Butts Cnty., 821 F.3d 1310 (11th Cir. 2016).

Genuine dispute remained as to a plaintiff's conversion claim because the evidence supported a finding that the local crew conducting the trash-out removed and threw away at least some personal possessions at the property. Mwangi v. Fannie Mae, 162 F. Supp. 3d 1315 (N.D. Ga. 2016).

- In a suit alleging a claim for trespass to personality after a creditor erroneously took the property of two non-debtors when the creditor executed a writ of possession of a debtor, the non-debtors neither possessed the items when the levy occurred nor did the non-debtors expect to regain possession of the items at any particular time and therefore failed to state a claim for trespass to personality; the undisputed evidence showed that the non-debtors loaned the items in question to the debtor for use in the debtor's dental practice with the understanding that the debtor could use the items as long as needed. Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App. 96, 643 S.E.2d 364 (2007).

Court of appeals did not err in affirming the trial court's order granting defense attorneys and their law firm summary judgment in an administrator's action alleging that they converted estate property when they accepted certain sums as payment for their services in representing a decedent's widow after the widow was indicted for the decedent's murder because O.C.G.A. § 53-1-5 did not place possession or an immediate right to possession of the estate property in the administrator at the time the widow dispersed and appellees received the funds in issue; when the widow dispersed the funds, the widow had qualified as executor of the decedent's estate and letters testamentary had been issued to the widow, the widow had not yet pled guilty to the murder charges, no final judgment of conviction had been entered in regard to the criminal indictment, and the widow's felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding. Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).

There was no allegation by the buyer that the United States had actual possession of the vehicles, and the count was correctly dismissed. Smith v. United States, 873 F.3d 1348 (11th Cir. 2017).

Cited in Whatley v. Manry, 60 Ga. App. 273, 3 S.E.2d 839 (1939); J. & C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 152 S.E.2d 613 (1966); Strickland v. Vaughn, 221 Ga. App. 636, 472 S.E.2d 159 (1996); Taylor v. Powertel, Inc., 250 Ga. App. 356, 551 S.E.2d 765 (2001); Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 75 Am. Jur. 2d, Trespass, §§ 11 et seq.

- 87 C.J.S., Trespass, § 7 et seq.

- Liability for property lost or stolen at the time of a personal injury, 1 A.L.R. 737.

Duty and liability of one in possession of real property in respect of personal property which he finds thereon belonging to another, 131 A.L.R. 165.

Liability for injury to person or damage to property as result of "blackout," 154 A.L.R. 1459; 155 A.L.R. 1458; 158 A.L.R. 1463.

Right to recover attorney's fees for wrongful attachment, 65 A.L.R.2d 1426.

Measure and elements of damages, in action other than one against a carrier, for conversion, injury, loss, or destruction of livestock, 79 A.L.R.2d 677.

What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.

Punitive damages for wrongful seizure of chattel by one claiming security interest, 35 A.L.R.3d 1016.

Employer's liability for theft or disappearance of employee's property left at place of employment, 46 A.L.R.3d 1306.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984.

Liability of estate for tort of executor, administrator, or trustee, 82 A.L.R.3d 892.

Liability for killing or injuring, by motor vehicle, livestock or fowl on highway, 55 A.L.R.4th 822.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

Construction and application of Parratt-Hudson doctrine, providing that where deprivation of property interest is occasioned by random and unauthorized conduct of state officials, procedural due process inquiry is limited to issue of adequacy of postdeprivation remedies provided by state, 89 A.L.R.6th 1.