Bo Phillips Co. v. R.L. King Props., LLC

• Decision Date: 23 March 2016
• Docket Number: No. A15A2003.,A15A2003.
• Citation: 783 S.E.2d 445
• Parties: BO PHILLIPS COMPANY, INC. et al. v. R.L. KING PROPERTIES, LLC et al.
• Court: Georgia Court of Appeals

783 S.E.2d 445

BO PHILLIPS COMPANY, INC. et al.
v.
R.L. KING PROPERTIES, LLC et al.

No. A15A2003.

Court of Appeals of Georgia.

March 23, 2016.
Reconsideration Denied April 13, 2016.

783 S.E.2d 447

Griffin Boyette Bell III, Daniel Thomas Seelos, for Appellant.

Rena Lyn Holmes, Lithonia, for Appellee.

ELLINGTON, Presiding Judge.

Appellants Bo Phillips Company, Inc. ("BPC") and Ro Benn, d/b/a Big Benn Entertainment ("Benn") sued R.L. King Properties, LLC and Robert L. King (collectively, the "appellees") for conversion, among other claims. BPC and Benn contend that they rented and delivered equipment to a DeKalb County nightclub, the premises of which was owned by King Properties, and the appellees later denied BPC and Benn access to the premises and refused to return their equipment.¹ The trial court granted summary judgment in favor of the appellees on all claims and denied BPC's and Benn's motion to compel discovery as moot. The trial court also impliedly denied BPC's and Benn's cross-motion for summary judgment.² BPC and Benn appeal from the trial court's grant of summary judgment on their claims for conversion, punitive damages, attorney fees, and the remedy of a constructive trust. They also appeal from the trial court's denial of their motion to compel and the trial court's denial of their cross-motion for summary

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judgment. For the reasons set forth below, we affirm in part and reverse in part.

Under OCGA § 9–11–56(c),

[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475–476, 759 S.E.2d 557 (2014).

The evidence shows that BPC is in the business of renting, selling, and servicing traffic and pedestrian control devices, among other safety-related gear. BPC purchased 150 eight-foot crowd control barricades on February 2, 2012, from an identified vendor. John Craig, Jr., BPC's vice president, testified by affidavit that on or about March 8, 2012, BPC rented and delivered 20 of those barricades to a nightclub known as Club Libra, which was operating on property located at 2549 Gresham Road in DeKalb County (the "premises"). BPC rented and delivered another 10 barricades to Club Libra on March 30, 2012. Attached to the affidavit, among other documentation, were delivery tickets showing a rental of barricades at a daily rate. BPC later attempted to regain possession of the barricades in October 2012, but the premises were closed and padlocked.

Benn, through his business Big Ben Productions ("Big Ben"), owns, rents, and services sound, stage, and lighting equipment. Benn testified that on October 17, 2011, Big Ben rented and delivered 42 pieces of equipment to Club Libra, as described in an attached agreement with "Kareem Hawthorn ‘Club Libra’ BKE Ent." According to Benn, he was unable to regain possession of the equipment in July 2012 as the premises were closed and padlocked.

Kareem Hawthorn testified by affidavit that he is a member of Blacknights Entertainment, LLC, which operated Club Libra on the Premises. Hawthorne's testimony showed the following. On or about October 17, 2011, Benn leased to Blacknights sound, stage, and lighting equipment for use at Club Libra. In addition, on March 8, 2012, BPC leased to Blacknights 20 eight-foot crowd control barricades for use at Club Libra. BPC leased to Blacknights, also for use at Club Libra, an additional 10 barricades on March 30, 2012. King permanently locked Blacknights out of Club Libra on August 29, 2012, at which time the pedestrian barricades that BPC had leased to Blacknights, and the equipment that Benn had leased to Blacknights, remained on the premises.

On August 22, 2012, King Properties sued Blacknights, as lessee, and Hawthorne and Tarrik Mabon, as lease guarantors, to recover for rent, taxes, and insurance allegedly owing under a lease agreement with respect to the premises. In an answer verified by Hawthorn and Mabon, the defendants asserted that the personal property on the premises was both leased and owned. In discovery responses filed in 2013, Blacknights, Hawthorn, and Mabon identified the items remaining on the Property as including "30 barricades (Leased Equipment)," six "DJ Speakers ... (Leased Equipment)" and "Sound and Lighting Equipment (Leased Equipment)." In their discovery responses, Hawthorn and Mabon also identified "Bo Phillips" and "Rogelio Benn" as two of the individuals with whom they or Blacknights "conducted business and/or leased equipment from August 1, 2011 until August 25, 2012."

1. BPC and Benn contend that the trial court erred in granting summary judgment to appellees on their claim for trover and conversion of their personal property.³ Conversion constitutes "an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of

783 S.E.2d 449

dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation." (Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261(1), 356 S.E.2d 877 (1987). To establish a prima facie case for conversion, "the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property." (Citation and punctuation omitted.) Trey Inman & Assocs., P.C. v. Bank of America, N.A., 306 Ga.App. 451, 457(4), 702 S.E.2d 711 (2010). See Hooks v. Cobb Center & c., Inc., 241 Ga.App. 305, 308(5), 527 S.E.2d 566 (1999) (accord).

The parties agree that Blacknights was in possession of personal property when King Properties locked it out of the Premises. And "[i]t is presumed that title follows the possession of the property." (Citation omitted.) Hinchcliffe v. Pinson, 87 Ga.App. 526, 529, 74 S.E.2d 497 (1953). The presumption that one in possession of personal property is the owner of that property is, however, a rebuttable presumption. See Hattaway v. Keefe, 191 Ga.App. 315, 317(1), 381 S.E.2d 569 (1989). As set forth above, BPC and Benn came forward with evidence, including statements by Blacknights and its members, from which a trier of fact could conclude that BPC owned the pedestrian barricades and Benn owned the sound and lighting equipment which was in the possession of Blacknights when Blacknights was locked out of the premises. The appellees claim that the evidence was insufficient because of a lack of serial numbers or other particular identifying information as to the claimed property. As to BPC, appellees argue that the delivery ticket for the pedestrian barricades shows 50, not 30, were delivered; there was a lack of evidence of ongoing rental payments for the barricades; the person who ordered the barricades, Rowan Reid, was not shown to be associated with Club Libra or Blacknights; and Craig's affidavit and Hawthorne's discovery responses are inconsistent as to the date of the lease. With respect to Benn, the appellees argue that equipment listed in the lease agreement for the DJ sound and lighting equipment was inconsistent with the demand letter for the return of equipment sent by Benn's counsel and with the list of leased equipment produced in discovery by Blacknights; the complaint alleged Benn delivered 42 pieces of "sound and lighting" equipment but Hawthorne's affidavit refers to 42 pieces of "sound, stage, and lighting equipment" (emphasis supplied); and Benn failed to come forward with any evidence showing periodic payments consistent with a lease. However, while the appellees point to inconsistencies and conflicts in the evidence, they were for the jury to resolve. See Gateway Bank & Trust v. Timms, 259 Ga.App. 299, 300(1), 577 S.E.2d 15 (2003) (in trial for conversion of a trailer, conflicting evidence as to true ownership of the trailer, notwithstanding the lack of serial number or other identifying information as to the trailer upon manufacture, was sufficient to support the jury's verdict).

The appellees also rely on evidence that King Properties retained a landlord's lien against Blacknights' property. They do not, however, rely on a statutory landlord's lien.⁴ Rather, King Properties shows that, under its lease agreement⁵ with Blacknights, it was entitled to retain possession of Blacknights' personal property "until all charges of any

783 S.E.2d 450

kind" were paid.⁶ See Colonial Self Storage, Inc. v. Concord Properties, Inc., 147 Ga.App. 493, 494(1), 249 S.E.2d 310 (1978) (rental contract allowed landlord to seize tenant's personal property upon non-payment of rent). However, the appellees do not show that King Properties was authorized under its agreement with Blacknights, or on any other basis, to retain personal property that...