Ex parte Anderson

• Decision Date: 16 May 2003
• Citation: 867 So.2d 1125
• Parties: Ex parte Joseph M. ANDERSON and Angela Anderson. (In re Joseph M. Anderson and Angela Anderson v. Smith's Towing Company, Inc., et al.)
• Court: Alabama Supreme Court

867 So.2d 1125

Ex parte Joseph M. ANDERSON and Angela Anderson.

(In re Joseph M. Anderson and Angela Anderson v. Smith's Towing Company, Inc., et al.)

1020177.

Supreme Court of Alabama.

May 16, 2003.

Thomas R. Boller, Mobile, for petitioners.

Robert S. Lamar, Jr., of Lamar, Miller, Norris & Feldman, P.C., Birmingham, for respondents. LYONS, Justice.

Joseph M. Anderson and Angela Anderson petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals affirming the trial court's summary judgment in favor of Smith's Towing Company, Inc., and its owners and employees Diane Smith and Doug Smith (the company and the individuals are hereinafter referred to collectively as "the Smiths") on the Andersons' claims of conversion and negligence per se in connection with repairs to a motor vehicle. See Anderson v. Smith's Towing Co., 867 So.2d 1121 (Ala.Civ.App.2002). We granted the Andersons' petition, and we affirm in part and reverse in part.

I. Factual & Procedural History

The facts are undisputed. Angela Anderson's mother owned a 1956 green Ford Thunderbird automobile. Angela's mother died in 1994, and Angela inherited the Thunderbird. Although the Andersons received possession of the Thunderbird in 1994, Angela's father, Elias Fonda, as executor of his wife's estate, retained the title to the Thunderbird. Fonda's address on the certificate of title is in Ohio.

The Andersons brought the Thunderbird from Ohio to Alabama, where they began restoring the vehicle. Joseph Anderson testified that he had the "body reworked" and the frame painted. In 1998, the Andersons made arrangements for Jeff Clark to repair the Thunderbird. Clark made several repairs to the Thunderbird before he decided to stop repairing automobiles for his livelihood. Clark then left the Thunderbird with the Smiths and testified that he told the Smiths how to contact Joseph Anderson who was "the guy that owns that green Thunderbird."

On or about May 12, 1999, the Smiths sold the Thunderbird to a third party without notifying Fonda or the Andersons. At the time of the sale, legal title to the Thunderbird remained in Fonda's name. After the sale, Fonda executed a durable power of attorney to Joseph Anderson granting him power of attorney concerning "matters relating to the 1956 Ford Thunderbird."

On November 15, 1999, the Andersons and Fonda sued the Smiths; they claimed that the Smiths converted the Thunderbird and that in violating the notification requirements of the Alabama Abandoned Motor Vehicles Act, §§ 32-13-1 to -8, Ala. Code 1975 ("the AAMVA"), the Smiths were negligent per se. The Smiths filed a motion for a summary judgment, arguing that because the Andersons did not hold legal title to the Thunderbird, they could not maintain an action alleging conversion. The Smiths also argued that they were under no duty under the AAMVA to notify the Andersons that they had sold the Thunderbird.

On March 11, 2002, the trial court entered a summary judgment in favor of the Smiths as to only the Andersons' claims¹ and made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P. The Andersons initially appealed to this Court; however, we transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala. Code 1975. On appeal, the Andersons argued that they held a possessory interest in the Thunderbird and that therefore their claims of conversion and negligence per se were proper. The Court of Civil Appeals disagreed; it affirmed the judgment of the trial court. The Court of Civil Appeals stated:

"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 [v. Alcuri, 710 So.2d 1266 (Ala.Civ.App. 1997) ]. 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 [the Smiths] on Joseph and Angela Anderson's claim of negligence per se under the [AAMVA]. The four elements of negligence per se are (1) that the statute was enacted to protect a class of persons that includes the litigant seeking to assert the statute; (2) that the injury was of the type contemplated by the statute; (3) that the party charged with negligent conduct violated the statute; and (4) that the statutory violation proximately caused the injury. Sparks v. Alabama Power Co., 679 So.2d 678, 685 n. 2 (Ala.1996); Fox v. Bartholf, 374 So.2d 294 (Ala.1979). Joseph and Angela Anderson argue that the circuit court erred in finding that they were not among the class of persons protected under § 32-13-1 et seq., Ala.Code 1975.

"....

"After a careful review of the statute, we conclude that Joseph and Angela Anderson were not among the class of persons protected by the [AAMVA], where they did not have legal title to the vehicle, and where they were acting on behalf of their own interests when they took action to repair the Thunderbird. Therefore, the class of persons protected under the [AAMVA] does not include a future titleholder's interest or the interest of an heir. Indeed, this court's prior holdings with regard to the [AAMVA] have limited the protected class of persons to those with secured interests. Global Federal Credit Union [v. Walker, 679 So.2d 1075 (Ala.Civ.App.1996)]. Based on the foregoing, the trial court did not err in granting [the Smiths'] motion for summary judgment as to the negligence claim."

Anderson, 867 So.2d at 1124-25.

II. Standard of Review

We review a ruling on a motion for a summary judgment de novo. In so doing, we review the evidence in the light most favorable to the nonmoving party and apply "the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary-judgment motion is to be granted when the evidence demonstrates that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P; Oliver v. Woodward, 824 So.2d 693, 697 (Ala.2001).

In order to defeat a properly supported summary-judgment motion, the nonmoving party must present substantial evidence creating a genuine issue of material fact. "[S]ubstantial 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

III. Conversion Claim

To prove conversion, the Andersons must present evidence of "a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse." Ott v. Fox, 362 So.2d 836, 839 (Ala.1978); Huntsville Golf Dev., Inc. v. Ratcliff, Inc., 646 So.2d 1334, 1336 (Ala.1994). The Andersons "must establish that the [Smiths] converted specific personal property to [their] own use and beneficial enjoyment." Huntsville Golf, 646 So.2d at 1336.

The sole issue involved in the Andersons' conversion claim is the "title-possession" element of conversion. See Roberson v. Ammons, 477 So.2d 957, 962 (Ala.1985). The Andersons cite § 6-5-261, Ala.Code 1975, and argue that their mere possession of the Thunderbird is sufficient to maintain their conversion action. Section 6-5-261 provides: "Mere possession of a chattel, if without title or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession." The Andersons argue that their possessory interest in the Thunderbird gives them a cause of action against the Smiths, who are neither the true owners of the Thunderbird nor the persons wrongfully deprived of its possession. Alternatively, they argue that the power of attorney executed by Fonda to Joseph Anderson clarifies Joseph's authority to act on behalf of Fonda and to maintain this conversion action.

The Smiths, on the other hand, argue that without legal title to the Thunderbird, the Andersons cannot maintain their conversion action. They further claim that the Andersons did not have the requisite possessory interest at the time of the alleged conversion. The Smiths argue that this Court has repeatedly held that to maintain a conversion claim a plaintiff must have both the legal title to and a right of possession in the allegedly converted property.

The Court of Civil Appeals agreed with the Smiths. It held that the Andersons' possessory interest alone was insufficient to support their conversion action. This Court has previously stated that both general or specific title to the property and a possessory interest in the property are elements of conversion. See Huntsville Golf, 646 So.2d at 1336 (a plaintiff can prove conversion by showing that "the defendant destroyed or exercised dominion over property to which, at the time of the [defendant's] 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"); Hamilton v. Hamilton, 255 Ala. 284, 289, 51 So.2d 13, 18 (1950) ("To be entitled to the right of recovery for conversion, plaintiff must have general or special title to the property in question, and...