Kemp Motor Sales, Inc. v. Lawrenz
Decision Date | 27 March 1987 |
Citation | 505 So.2d 377 |
Parties | KEMP MOTOR SALES, INC., and Gertrude Wade v. David W. LAWRENZ. 85-1493. |
Court | Alabama Supreme Court |
James R. Owen of Owen, Ball and Simon, Bay Minette, for appellants.
Pamela W. Baschab and C.G. Chason of Chason and Underwood, Foley, for appellee.
This is a conversion case. The plaintiffs, Kemp Motor Sales, Inc., and Gertrude Wade, sued the defendant, David W. Lawrenz, for the destruction of a boathouse. In a motion for summary judgment, the defendant challenged the plaintiffs' property interests in the boathouse as insufficient to support the claim of conversion. He also counterclaimed, seeking restitution for the costs incurred in tearing down the disputed structure in the event the trial court found that the plaintiffs did in fact own the boathouse. On the defendant's motion for summary judgment, the trial court held for the defendant on the conversion claim. The trial court did not rule on the defendant's counterclaim, and the plaintiffs subsequently moved for final judgment pursuant to Rule 54(b), Ala.R.Civ.P., on the matters actually adjudicated. We now consider the plaintiffs' appeal from the judgment for the defendant on the plaintiffs' claim. We affirm.
We will assume for the purpose of deciding this case that the destruction of the boathouse was an act for which a claim of conversion will lie. We would note, however, that it is not the usual case that such a building will be considered to be personal property, as opposed to realty, and therefore subject to the tort of conversion. See Sullivan v. Lawler, 222 Ala. 628, 133 So. 911 (1931); Powers v. Harris, 68 Ala. 409 (1880); 18 Am.Jur.2d Conversion § 22, at 158 (1985). In view of the dispositive issue relating to the failure of proof, discussed below, however, we find that we need not reach the question of the status of the boathouse as personalty in order to decide this case. We, therefore, decline to reach that question, and we will assume, without deciding, that the boathouse in question could be the subject of conversion.
It has been said that "[t]he gist of conversion is the interference with control of the property." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Torts, § 15, at 102 (5th ed. 1984). Our cases have often recognized this same principle, and they have further noted that some demonstrable "property" interest must exist in order for a party to assert a claim in conversion:
McCain v. P.A. Partners Limited, 445 So.2d 271, 272 (Ala.1984) (emphasis added). See also Sadie v. Martin, 468 So.2d 162 (Ala.1985); Ott v. Fox, 362 So.2d 836 (Ala.1978). According to the defendant, the plaintiffs failed to show any property interest or possessory right in the disputed boathouse in response to his motion for summary judgment. He argues that the trial court was therefore correct in granting this motion, there being a complete failure of proof on an essential element of the tort.
We must evaluate the defendant's argument in light of the applicable standards of review. The standards implicated here have been firmly established by our previous cases:
Wright v. Robinson, 468 So.2d 94, 97 (Ala.1985).
Applying these standards to the instant case, we find no error on the part of the trial court. In his motion for summary judgment, the defendant challenged the plaintiffs' property interest in the boathouse by arguing that the boathouse was a fixture to realty and that any right of action for the conversion of such a fixture would lie with the owner of the realty with which that fixture was associated. In an affidavit supported by certified copies of property records from the probate court, he then asserted that the property adjacent to the boathouse was owned by his family, and that neither of the plaintiffs owned any real property in the vicinity of the boathouse. Thus, the defendant argued, the plaintiffs' claim for conversion was due to be denied, because they had no interest in the adjacent realty, and, consequently, no interest in the boathouse as a fixture. Hence, it was incumbent upon the plaintiffs to respond to the defendant's motion by showing some interest in the boathouse which would support their claim for conversion. The plaintiffs, however, failed to file any response to this motion, and our review of the record discloses...
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