Anderson v. SMITH'S TOWING CO., INC.

• Decision Date: 11 October 2002
• Citation: 867 So.2d 1121
• Parties: Joseph M. ANDERSON and Angela Anderson v. SMITH'S TOWING COMPANY, INC., et al.
• Court: Alabama Court of Civil Appeals

867 So.2d 1121

Joseph M. ANDERSON and Angela Anderson v. SMITH'S TOWING COMPANY, INC., et al.

2011005.

Court of Civil Appeals of Alabama.

October 11, 2002.

Thomas R. Boller, Mobile, for appellants.

Robert S. Lamar, Jr., of Lamar, Miller, Norris & Feldman, P.C., Birmingham, for appellees.

PITTMAN, Judge.

This is an appeal from the trial court's order granting the defendant's motion for summary judgment.

This case was transferred to this court from the supreme court pursuant to § 12-2-7, Ala.Code 1975.

On May 12, 1999, Joseph and Angela Anderson filed a complaint alleging conversion and negligence on the part of Smith's Towing Company, Inc., and others (hereinafter "Smith's") in selling a 1956 Ford Thunderbird to a third party. Subsequently, on December 17, 2001, Smith's filed a motion for summary judgment. On February 19, 2002, Joseph and Angela Anderson filed a response to the motion for summary judgment. The trial court entered an order on March 11, 2002, granting summary judgment for Smith's. In its order granting summary judgment, the trial court found that no genuine issues of material fact existed and Smith's was entitled to a final judgment as a matter of law. (C. 101.)

On appeal, Joseph and Angela Anderson contend that the trial court erred in granting Smith's motion for summary judgment. Specifically, the Andersons argue that an action for conversion and negligence is proper in this case because, they say, they had a possessory interest in the Thunderbird where it had been in their possession for five years. Joseph and Angela Anderson further contend that they had a cause of action against Smith's for negligence per se as a part of a class of persons protected under the Alabama Abandoned Motor Vehicles Act found in §§ 32-13-01 et seq., Ala.Code 1975.

Rule 56 of the Alabama Rules of Civil Procedure sets out a two-tiered standard for entering summary judgments. The trial court must determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law. Hinkle v. Burgreen Contracting Co., 678 So.2d 797, 799 (Ala.Civ.App.1996). Furthermore, to defeat a properly supported motion for summary judgment, the non-movant must present "substantial evidence" of his claim. § 12-21-12, Ala.Code 1975. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party. Goodwin v. City of Fultondale, 706 So.2d 766 (Ala.Civ.App. 1997).

At the outset, we note the following well-settled law regarding conversion:

"`To establish conversion, a plaintiff must show a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another's property, or a wrongful detention or interference with another's property. The plaintiff must establish that the defendant converted specific personal property to the defendant's own use and beneficial enjoyment. The plaintiff asserting conversion could also show that the defendant destroyed or exercised dominion over property to which, at the time of the destruction or exercise of dominion, the plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which the plaintiff was entitled to immediate possession.'"

Ellis v. Alcuri, 710 So.2d 1266, 1267 (Ala. Civ.App. 1997), citing Huntsville Golf Dev., Inc. v. Ratcliff, Inc., 646 So.2d 1334, 1336 (Ala.1994) (citations omitted)(emphasis added).

The Andersons contend that an action for conversion was proper where they had a possessory interest in the Thunderbird. While the facts contained in the record on appeal are minimal, the facts do indicate that the Thunderbird was originally driven by Angela Anderson's mother before her death. (C. 51.) After the mother's death, the Thunderbird was willed to Angela Anderson; however, as executor of his wife's estate, Angela's father kept the title to the Thunderbird in his name. (C. 48-49.) The Andersons brought the car from Ohio to Alabama to be refurbished. (C. 48.) The car was eventually left with Smith's. (C. 52-53.)

Although the facts indicate that Joseph and Angela Anderson were entitled to immediate possession of the Thunderbird, and had previously had actual possession of the vehicle, they did not have a general or specific title to the Thunderbird. Indeed, Joseph and Angela Anderson had a possessory interest in the Thunderbird; however, this possessory interest alone is insufficient to maintain an action for conversion. Ellis, supra. The Ohio title to the Thunderbird, attached as an exhibit to Smith's motion for summary judgment, indicates Elias Fonda had legal title to the vehicle. Accordingly, Joseph and Angela Anderson did not have legal title to the vehicle, and, therefore, the trial court did not err in granting summary judgment with regard to Joseph and Angela Anderson's claim of conversion.

Likewise, the trial court did not err in granting summary judgment in favor of Smith's on Joseph and Angela Anderson's claim of negligence per se under the Alabama Abandoned Motor Vehicles Act. The four elements of negligence per se are (1) that the statute was enacted to protect a class of persons that...