Kaiser v. Tara Ford, Inc.

• Decision Date: 07 March 2001
• Docket Number: No. A00A2350.,A00A2350.
• Citation: 248 Ga. App. 481,546 S.E.2d 861
• Parties: KAISER v. TARA FORD, INC.
• Court: Georgia Court of Appeals

546 S.E.2d 861

248 Ga. App. 481

KAISER v. TARA FORD, INC.

No. A00A2350.

Court of Appeals of Georgia.

March 7, 2001.

Certiorari Denied July 16, 2001.

Brian B. Pastor, Atlanta, for appellant.

Byrne, Moore & Davis, A.L. Mullins, Jr., Atlanta, for appellee. ANDREWS, Presiding Judge.

Marc J. Kaiser appeals from the trial court's grant of summary judgment to Tara Ford, Inc. d/b/a Allen Vigil's Southlake Ford (Southlake) on his claims for malicious prosecution, intentional infliction of emotional distress, defamation, and failure to supervise and train employee Barbara Keller and a claim pursuant to OCGA § 51-1-6.¹

In reviewing a grant of summary judgment pursuant to the standards set out in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), this Court conducts a de novo review of the law and the evidence, Desai v. Silver Dollar City, 229 Ga.App. 160, 163(1), 493 S.E.2d 540 (1997), giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Clark v. Cauthen, 239 Ga.App. 226, 227(1), 520 S.E.2d 477 (1999). If a defendant who does not bear the burden of proof at trial demonstrates that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case, the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue. Lau's Corp., supra.

So viewed, the evidence² was that in 1994, the City of Pioneer Village, Kentucky, maintained a volunteer police force and Kaiser participated. The city had only two used police cars, about ten years old. Through donations, the city was able to purchase a new police interceptor Crown Victoria from Southlake, which was titled in the name of the city. Because the police force was volunteer, the city allowed individual police officers to purchase police cars which were then leased to the city for $1 a year so the city could assist in providing insurance.

Kaiser, who was appointed Chief of Police by Mayor Welker in late summer 1994, assisted in outfitting the new police car and knew it came from Southlake. Kaiser asked the mayor if the city would object if he purchased a similar vehicle, and Welker told him there was no problem, but the city could not pay for it.

Southlake first created a fleet department in 1989 to deal with commercial and government entities needing fleets of vehicles. Speckter, who set up the fleet department and was its first manager, greatly increased Southlake's inventory of police cruisers in late 1991 and early 1992, to the extent that Southlake had to rent Atlanta Raceway for additional storage of the cars.

Keller began working in the fleet department in 1990. At that time, two different engine sizes were available in the police cruisers, the larger of which Keller understood could be sold only to government agencies, while the smaller engine could be sold to individuals. In fact, Ford Motor Company's (Ford) policy manual, which Keller had never seen, provided that model P71 (the Police Interceptor)

is only available for sale to state or local governments including fire departments and railroad security agencies for use as an emergency vehicle. An emergency vehicle is used as a police vehicle or for other law enforcement purposes. Police Interceptor cars may not be sold or leased to an individual deputy or constable for registration in his or her name.

(Emphasis in original.)

During 1992 and 1993, Speckter and Keller apparently were selling these police cruisers to private entities and individuals in violation of this policy. All documents originating from Ford and maintained by Southlake would reflect only the government entity as owner of the vehicles sold to individuals. Speckter and Keller, however, would add the individuals' names to the documents given to the purchasers for the purpose of titling the vehicles.

In early 1994, Speckter informed Keller that "absolutely none" of the police cruisers could be sold to any entity other than a government agency and no cars were to be sold to individuals.

In mid-1994, Keller dealt with Mayor Welker and sold the first police cruiser to the city. That car was properly titled in the city, pursuant to Ford's policy and, apparently, the law of Kentucky. A month or two later, Keller was again contacted by Welker who inquired about a second car for one of his deputies. Keller advised the mayor that the car could be sold only to a governmental agency, and Welker told her he would have the deputy contact her. Kaiser called her a few days later and was told that there was another cruiser available. Kaiser understood that the car would be titled jointly in his name and that of the city.

Kaiser contacted his bank, and a loan was made to Kaiser and his wife. A cashier's check was issued by the bank on October 8, 1994, payable to Southlake and Kaiser. Because Kaiser was unable to go, his friend Condor flew to Atlanta with the cashier's check to pick up the cruiser. When Keller received the check, she typed in "/City of Pioneer Village" after Kaiser's name. She later signed "City of Pioneer Village" to the back of the check. On the Manufacturer's Statement of Origin and the dealer's invoice, which originally were made out with the city only as the purchaser, Keller typed in Kaiser's name.

The car was taken to Kentucky by Condor and turned over to Kaiser, with the altered invoice, Manufacturer's Statement of Origin, and copy of the check. The check, as altered by Keller, was returned to the bank and placed in Kaiser's file where it and the altered title remained for a period of time, although the alterations were not noted by the bank. Although Keller had given Condor a copy of the cashier's check to take back to Kaiser, it had been copied before the alteration in payee was made. Kaiser took the Manufacturer's Statement of Origin to register the car in Kentucky. In order to do so, it was necessary that a Vehicle Transaction Report (VTR) be completed. Kaiser completed the buyer's side of the VTR, reflecting himself and the city as buyers of the car.

In November 1994, an election in Pioneer Village resulted in five of six council members being replaced. As a result, one of the new council members filed a complaint with the Kentucky Attorney General's Office regarding improper purchases by city officials, including the mayor, of surplus automobiles, including police vehicles, from the State for use by private citizens. An investigation was begun by the Auditor of Public Accounts in the spring of 1995. Because of a fatality involving one of the privately used surplus police cars, the auditor initiated a check of the title status of all Pioneer Village vehicles. Kaiser's car, although not surplus and not involved in that investigation, was on the list retrieved and became the subject of a criminal investigation by the Attorney General's Special Investigations Division because it was jointly titled.

Attorney General's Investigator McAuliffe was assigned to the investigation of the Kaiser purchase. Kaiser knew McAuliffe from prior joint city/state investigations. During one of these investigations, McAuliffe had asked Kaiser to allow the State to claim part credit for a drug deal in order to claim a portion of the federal "bonus." Because this did not go well resulting in the loss of the bonus for the city and State, Kaiser wrote a letter of complaint to the Attorney General and there was resulting "bad blood" between Kaiser and McAuliffe.

In January 1995, McAuliffe arrived at Pioneer Village City Hall with a subpoena for the mayor's records as part of the surplus property investigation.³ Because the subpoena had the wrong name on it, Kaiser did not comply with it at that time, further angering McAuliffe.

McAuliffe repeatedly interviewed Kaiser about the car, and Kaiser showed him all his documentation, including a copy of the cashier's check made by Southlake, which did not reflect the alterations, only some bookkeeping notations made by Keller. In April 1995, McAuliffe then telephoned Keller at Southlake and asked if she had sold police cars to Pioneer City. He advised her that he had obtained the original cashier's check from the bank and that it appeared it had been altered by the addition of "/City of Pioneer Village." McAuliffe asked Keller if the check had been altered at the dealership, and she denied it. McAuliffe then faxed Keller a copy of the check and telephoned her again on June 29, 1995. He went over the same facts and asked again if the alteration occurred at Southlake, and Keller again denied it. At some point in 1995, after speaking to McAuliffe, Keller went to Nelson, who became fleet manager in 1994 after Speckter was fired, and told him that the Kaiser check had been altered while in the possession of Southlake and she had not told McAuliffe the truth about it. Nelson told her to "stay out of it" and not say anything else to anyone about the Kentucky matter. Nelson left Southlake on November 20, 1995. Burtner, who was assisting with the fleet department after Nelson's departure, asked Keller if she had done anything improper in the Kaiser transaction, and she said no.

Southlake's original file on the Kaiser transaction was requested for the investigation. The file was reviewed by Southlake's business manager Herzberg and general manager Cason. Since the documents in Southlake's files reflected only the city as the purchaser, no problem was noted and the file was forwarded to McAuliffe.

After McAuliffe concluded his investigation, the case was directly submitted to Commonwealth Attorney Mann of Bullitt County. On a direct submission, Mann made the decision whether to submit the matter to the grand jury and prepared any proposed indictment. Mann, based on McAuliffe's investigation, prepared a four-count indictment against Kaiser for forging the check ...