Qenkor Constr., Inc. v. Everett

• Decision Date: 15 July 2015
• Docket Number: No. A15A0598.,A15A0598.
• Parties: QENKOR CONSTRUCTION, INC. v. EVERETT.
• Court: Georgia Court of Appeals

333 Ga.App. 510

773 S.E.2d 821

QENKOR CONSTRUCTION, INC.

v.EVERETT.

No. A15A0598.

Court of Appeals of Georgia.

July 15, 2015.

Reconsideration Denied July 29, 2015.

Certiorari Denied Nov. 2, 2015.

Betts & Associates, David Edward Betts, Atlanta, for Appellant.

Womack, Gottlieb & Rodham, Steven Mark Rodham, Ronald R. Womack, La Fayette, for Appellee.

Opinion

BRANCH, Judge.

Qenkor Construction, Inc. (“QCI”) sued John Everett, the former sheriff of Chattooga County, alleging that Everett's conduct in executing a search warrant resulted in trespass against and the conversion of certain property belonging to QCI. Everett moved for summary judgment, asserting that QCI's claims against him were barred by official immunity. Everett further argued that QCI could not prevail on its claims for trespass and conversion because, regardless of whether he was entitled to immunity, his conduct was otherwise authorized by law. The trial court granted Everett's motion in a one-sentence order that contained no findings of fact or conclusions of law. QCI now appeals from that order.¹ For reasons explained below, we find that Everett is entitled to official immunity for the conduct that serves as the basis for QCI's trespass claim, and we therefore affirm the grant of summary judgment on that claim. We reverse the grant of summary judgment on QCI's claim for conversion, however, because we find that questions of fact exist as to whether Everett converted QCI's property and, if so, whether he acted with actual malice in doing so.

Summary judgment is proper if the pleadings and evidence “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.” OCGA § 9–11–56(c). We review a trial court's ruling on summary judgment de novo, “viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party,” Beale v. O'Shea, 319 Ga.App. 1, 2, 735 S.E.2d 29 (2012) (citation and punctuation omitted), and bearing in mind that the “trial court is not authorized to resolve disputed issues of material fact.” Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833(1), 691 S.E.2d 852 (2010) (citation omitted).

Viewed in the light most favorable to QCI, as the non-movant, the record shows that QCI is a construction company and William Benefield served as its sole officer and shareholder. Benefield's mother, Sandra Weaver, served as QCI's accountant, and in that capacity she had access to QCI's bank accounts. Weaver was also QCI's landlord. Specifically, the record shows that Weaver owned a company called North Georgia Computerized Services (“NGCS”) which offered computer repair, as well as word processing, desktop publishing, and tax preparation and other business-related services. NGCS's offices were housed in a building owned by Weaver and listed on the Chattooga County tax records as being located at 11195 Highway 27, Summerville. When QCI began operation in August 2009, Benefield divided this building into two interior halves by placing a wall with a locked door in the middle of the structure. Each side of the building had its own entrance, and QCI and NGCS maintained signage advertising their respective businesses on their respective sides of the building. Additionally, QCI placed a mailbox on its side of the building with the street number 11193, and QCI listed its address as 11193 Highway 27, Summerville. There is no evidence in the record showing how QCI came up with the address 11193, nor does the record show that any governmental entity viewed the building as being on two separate lots. Instead, it appears that 11193 was not considered an address for property tax purposes.

Although QCI provided a variety of home improvement services, its primary business was roof repair and replacement. QCI advertised its roofing services by offering customers a “free roof” if their current roof had been damaged by hail. When providing prospective customers with a damage assessment and repair estimate, QCI sales representatives would ask the customer to sign a contract known as a “subject to” agreement. Under the terms of this form contract, QCI would inspect the roof and report any damage to the homeowner's insurer. The contract would become binding only if the insurer deemed the roof repair or replacement to be a covered loss under the homeowner's policy. In that case, the customer would then be liable under the contract for any insurance deductible. Additionally, each of these contracts contained a liquidated damages clause, which provided that if, after the insurance company agreed to pay for the roof repair or replacement, the customer elected to use another company for those services, QCI would be entitled to 25 percent of the contract price as liquidated damages.

In the event a particular customer failed to pay any amount owed as a result of either his deductible or the liquidated damages clause, QCI would file a construction lien against the customer's property. All liens filed by QCI were signed by Benefield and bore the notary seal and signature stamp of Sue Brown. In approximately late 2009 or early 2010, both the Chattooga County sheriff's office and the State Insurance Commissioner's Office received several complaints about QCI's filing of construction liens. Specifically, customers were complaining that they had signed a form believing they were authorizing QCI to go on their roof and provide them with an estimate and then discovered that a construction lien had been filed by QCI, even though the company had done no work on the property. Everett, who at the time was serving as the Chattooga County sheriff, contacted the insurance commissioner's office about these complaints. As a result, investigator Doug Gaddis of the insurance commissioner's office opened an investigation into QCI.

During the course of Gaddis's investigation, he learned that Sue Brown had not, in fact, ever witnessed or notarized any of the QCI construction liens on which her notary seal and signature stamp appeared, a fact that both Benefield and Weaver eventually confirmed. Brown told investigators that she had worked for Weaver at NGCS from 2001 through 2008 and for several weeks during 2009. When Brown left Weaver's employment, she left her signature stamp and notary seal with Weaver.

As a result of his investigation, Gaddis applied to the Chattooga County Magistrate Court for a search warrant for the building owned by Weaver and which housed the offices of both NGCS and QCI. The affidavit Gaddis submitted in support of the search warrant set forth facts learned during the investigation into QCI's filing of construction liens. The affidavit further stated that as a result of QCI's conduct with respect to the filing of construction liens, state investigators had reason to believe that Benefield and Weaver were engaged in the crimes of forgery and making false statements; that investigators were seeking additional evidence of such crimes, in the form of certain business, employment, and financial records, computers, computer systems, computer hardware, software, and data, and other computer-related equipment, notary stamps, notary seals, and signature stamps; and that investigators had reason to believe such evidence could be found inside a building located at 11195 Highway 27, Summerville.

The search warrant was issued and it described the premises to be searched as:

11195 Highway 27, Summerville, GA 30747

Listed with the Board of Assessors for Chattooga County as North Georgia Computerized Services, owned by Sandra Weaver. Commercial building located across Highway from McDonald's restaurant and described as: a single level building with rock appearance half way up front and gray vinyl siding top front with gray shingle roof, bearing signs in window reading “Tax Service.”

Additionally, the warrant allowed police to search for and seize the items specified in the affidavit to the extent that such items could include evidence of forgery and the making of false statements.

At approximately 10:00 a.m. on April 21, 2010, officers with the Chattooga County sheriff's office conducted a traffic stop of a car in which Weaver and Benefield were riding and arrested Benefield pursuant to a warrant. Officers then followed Weaver as she drove to the building that housed both the NGCS and QCI offices. At the direction of Everett and/or other officers with the Chattooga County sheriff's department, Weaver unlocked the outside entrance to the QCI office and Everett, Gaddis, additional officers with the Chattooga County sheriff's department, and investigators with the insurance commissioner's office executed the search warrant. The entire building was searched, including the offices of both QCI and NGCS.² After Gaddis told one or more officers that Weaver was not under arrest, she was allowed to leave the scene. Weaver went to the bank where she withdrew $13,000 cash from QCI's account, intending to use that money to post bond and retain an attorney for Benefield.

As Weaver drove back by the NGCS/QCI building following her trip to the bank, officers flagged her down to ask about keys to the filing cabinets in the NGCS office. Weaver pulled into the parking lot of a car wash situated behind her building, and spoke with officers while sitting on a stone wall that divided the two properties. Officers went on to the car wash property and searched Weaver's car, in which they found her pocketbook and the $13,000 cash it contained.³ During a discussion with Kandy Dodd, an investigator with the sheriff's department, Weaver stated that she was the person who had notarized the construction liens filed by QCI, using the notary seal and signature stamp of Sue Brown. Dodd reported this information to Gaddis, and Gaddis and Everett then interviewed Weaver in the NGCS office. During that interview, Everett announced that he was seizing the $13,000 cash found in...