Wilder v. Charles Bell Pontiac-Buick, Cadillac-GMC, Inc.

• Decision Date: 22 June 1990
• Docket Number: INC,PONTIAC-BUIC,CADILLAC-GM
• Citation: 565 So.2d 205
• Parties: Bernice WILDER v. CHARLES BELL 89-51.
• Court: Alabama Supreme Court

Page 205

565 So.2d 205

Bernice WILDER v. CHARLES BELL PONTIAC-BUICK, CADILLAC-GMC, INC.

89-51.

Supreme Court of Alabama.

June 22, 1990.

Walter E. McGowan of Gray, Langford, Sapp, Davis and McGowan, Tuskegee, and W. Banks Herndon of Herndon & Dean, Opelika, for appellant.

Robert S. Thompson, Tuskegee, for appellee.

JONES, Justice.

The plaintiff, Bernice Wilder, appeals from a summary judgment for the defendant. The appeal relates to count 2, which charged the defendant with wrongfully taking her automobile and certain personal property in it. No issue with respect to that portion of the judgment pertaining to count 1 is presented by this appeal.

The pertinent facts are as follows: Wilder, who lives and works in Columbus, Georgia, visited an automobile dealership operated by the defendant, Charles Bell Pontiac-Buick, Cadillac-GMC, Inc. ("Charles Bell"), in Tuskegee, Alabama, as a prospective buyer of a new car. During the first meeting between Wilder and Mr. Jackson, an employee of Charles Bell, Wilder told Jackson that she would think about buying a new car from Charles Bell.

Both parties agree that there were later telephone conversations between them, but they disagree with respect to the content of those conversations. Several days after the first meeting between Wilder and Jackson, Jackson drove a new Cadillac automobile to Wilder's place of business in Columbus. Wilder's automobile (a 1984 Chrysler), which was being repaired and was in the custody of a repair shop, was picked up and taken to Tuskegee at Jackson's direction. Wilder's car was then sold to a dealership in Montgomery.

Charles Bell contends that Wilder consented to the taking of her automobile pursuant to an agreement that the Chrysler would serve as a "trade-in" on the new Cadillac. Wilder, however, denies giving such consent and further asserts that her car, and personal belongings in the car (clothing, business papers, medicine, and a hydraulic jack) were wrongfully taken by Charles Bell.

To maintain an action for conversion, a plaintiff must establish that the defendant converted specific personal property to his own use and beneficial enjoyment, or that the defendant destroyed or exercised dominion over property to which, at the time of the conversion, the plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which he was entitled to immediate possession. A.C. Rent-A-Car, Inc. v. American Nat'l Bank & Trust Co. of Mobile, 339 F.Supp. 506 (D.C.Ala.1972), aff'd, 477 F.2d 564 (1973). See, also, Yarbrough v. Williams, 533 So.2d 565 (Ala.1988); Allstate Enterprises, Inc. v. Alexander, 484 So.2d 375 (Ala.1985); and Ott v. Fox, 362 So.2d 836 (Ala.1978).

Further, "it is well established that it constitutes a conversion to receive property from one who has no right to part with, or dispose of, such property, and thereafter to exercise dominion over it." Universal C.I.T. Credit Corp. v. Weeks, 46 Ala.App. 372, 376, 242 So.2d 682, 685 (1970).

The propriety of granting a motion for summary judgment is determined by the standard set forth in Rule 56(c), A.R.Civ.P.:

"The judgment sought shall be rendered forthwith 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."

The burdens placed upon the parties by Rule 56 have often been discussed by this Court:

"The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact."

Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989); and see the cases cited therein.

Once a party has moved for summary judgment and, with his motion, has presented evidence that, if uncontested, will entitle him to a judgment as a matter of law, the non-movant, in his response to the motion, must, as provided by Rule 56, set forth specific evidence that would present a...