Qenkor Construction, Inc. v. Everett , 333 Ga. App. 510 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 15, 2015
In the Court of Appeals of Georgia
A15A0598. QENKOR CONSTRUCTION, INC. v. EVERETT.
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 SE2d 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 SE2d 852) (2010) (citation omitted).
1
Because the trial court offered no insight into the bases for its grant of
Everett’s summary judgment motion, QCI argues on appeal that neither of the
grounds asserted in that motion support the trial court’s order.
2
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
3
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
4
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.
5
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
6
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
2
At the same time, other officers also executed search warrants that had been
issued for the homes of both Benefield and Weaver.
7
$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
Weaver’s pocketbook as evidence. According to Weaver, Everett stated that he was
seizing the cash because the QCI bank account should have been frozen. Weaver also
testified that her understanding from one of the Insurance Commissioner’s
3
According to Weaver, her car was searched four times on the day in question:
twice while it was parked at her building; once at her home; and once while it was
parked at the car wash located adjacent to her building.
8
investigators was that they were refusing to seize the cash because it was not covered
by the warrant.
At some point either during or after her interview with Everett and Gaddis,
Weaver was arrested. There is conflicting testimony as to whether the cash was seized
before or after Weaver was placed under arrest. The undisputed evidence shows,
however, that QCI’s bank accounts were never frozen.
Weaver began calling Everett, who is also her first cousin, in September or
October of 2010 seeking the return of the property taken during the execution of the
search warrant, especially NGCS’s computer equipment and QCI’s cash. Everett told
Weaver that he did not have any of the seized property, including QCI’s cash, because
it had all been taken by the Insurance Commissioner’s office and was in Atlanta.
When Weaver contacted Gaddis, however, Gaddis told her that the Sheriff had all of
the seized property. Weaver again contacted Everett, who again insisted that he did
not have any of the seized property, including the cash. In early November 2010,
Weaver called Gaddis a second time about the return of the property at issue,
including QCI’s cash. Gaddis advised Weaver to contact the office of the Chattooga
County District Attorney. Weaver did so and on approximately December 21 or 22,
Gaddis called her and told her the seized property could be picked up at the Sheriff’s
9
office. Benefield went and retrieved the items, but the cash was not among the
property returned. Weaver again contacted the District Attorney’s office, which then
sent a letter to Everett instructing him to return QCI’s cash. Everett returned the
money in either late December 2010 or early January 2011.
In November 2011, Benefield and Weaver were each indicted on 46 counts of
forgery in the first degree and nine counts of making a false statement. The charges
against Benefield were nolle prossed on August 16, 2012, and the charges against
Weaver were nolle prossed one year later, on August 19, 2013.
1. QCI seeks to hold Everett liable for conduct he engaged in while performing
his duties as Chattooga County Sheriff. Given this fact, we begin with the question
of whether Everett is entitled to immunity from QCI’s claims.4
4
QCI has sued Everett only in his personal capacity and therefore sovereign
immunity is not at issue in this case. See Seay v. Cleveland, 270 Ga. 64, 65 (1), n. 1
(508 SE2d 159) (1998) (a sheriff sued in his personal capacity will be protected “only
to the extent official or qualified immunity applies”; sovereign immunity is applicable
only where a sheriff is sued in his official capacity). And because he has not been
sued in his official capacity, Everett may be held liable only for conduct that he
personally engaged in. Id. See also Gilbert v. Richardson, 264 Ga. 744, 754 (452
S.E.2d 476) (1994) (a sheriff may be held liable under the doctrine of respondeat
superior for the conduct of his officers only where the sheriff has been sued in his
official capacity).
10
“As a general rule, a county law enforcement officer enjoys official immunity
from a lawsuit alleging that she is personally liable in tort for her performance of
official functions.” Eshleman v. Key, ___ Ga. ___ (1) (Case No. S14G1173, decided
June 29, 2015) (citations and footnote omitted). Such immunity is abrogated,
however, in two specific circumstances. First, no immunity exists where the officer
acted “with malice or an intent to injure.” Cameron v. Lang, 274 Ga. 122, 123 (1)
(549 SE2d 341) (2001) (footnote omitted). Second, an officer is without immunity for
the negligent performance of a purely ministerial duty. Id. The Supreme Court of
Georgia has explained the difference between the ministerial functions of a law
enforcement officer and official functions that involve the officer’s exercise of
discretion as follows:
A ministerial act is commonly one that is simple, absolute, and definite,
arising under conditions admitted or proved to exist, and requiring
merely the execution of a specific duty. A discretionary act, however,
calls for the exercise of personal deliberation and judgment, which in
turn entails examining the facts, reaching reasoned conclusions, and
acting on them in a way not specifically directed. Whether the act of a
public official is ministerial or discretionary is determined by the facts
of each individual case, particularly the facts specifically relevant to the
official’s act or omission from which the alleged liability arises.
11
Grammens v. Dollar, 287 Ga. 618, 619-620 (697 SE2d 775) (2010) (citations and
punctuation omitted). “A ministerial duty may be established by evidence such as a
written policy, an unwritten policy, a supervisor’s specific directive, or a statute.
Procedures or instructions adequate to cause an act to become merely ministerial must
be so clear, definite and certain as merely to require the execution of a relatively
simple, specific duty.” Roper v. Greenway, 294 Ga. 112, 115 (751 SE2d 351) (2013)
(citations and punctuation omitted).
Bearing these principles in mind, we turn to the question of whether the trial
court properly granted summary judgment to Everett on QCI’s claims for trespass and
conversion.
2. Under Georgia law, all citizens are afforded “an absolute right of enjoyment
of their property, and ‘every act of another which unlawfully interferes with such
enjoyment is a tort for which an action shall lie.’ OCGA § 51-9-1.” Nichols v. Ga.
Television Co., 250 Ga. App. 789, 790 (1) (552 SE2d 550) (2001). The conduct which
serves as the basis for QCI’s trespass claim is the execution of the search warrant. At
the time the warrant was executed, the Chattooga County Sheriff’s Department had
in place a written policy concerning the execution of search warrants. That written
policy provided, in relevant part:
12
Prior to the execution of a search warrant, an officer of supervisory rank
shall have reviewed the affidavit and warrant and the circumstances of
its issuance to ensure the requirements of the law are being met, and that
all necessary elements are present, even though the warrant may have
already been signed by the appropriate authority.
In this case, Everett admitted that he did not review the warrant prior to its execution.
QCI contends that this failure to review the warrant constitutes a breach of a
ministerial duty that resulted in the trespass to QCI’s property. Specifically, QCI
asserts that had Everett fulfilled his ministerial duty to review the search warrant, he
would have seen that the warrant was only for 11195 Highway 27 and therefore did
not cover QCI’s offices, which were ostensibly located at 11193 Highway 27. And
because Everett negligently failed to perform this ministerial duty, QCI argues, he is
not entitled to immunity for his conduct. This argument fails for two reasons.
First, the undisputed evidence shows that the written policy in question applied
only to those search warrants that were procured by officers with the Chattooga
County Sheriff’s Office. Both Everett and Mark Schrader, the current Chattooga
County Sheriff, testified that the policy did not apply to warrants that were procured
by other state agencies, including the Insurance Commissioner’s office. Each of these
men also testified that the policy did not require the Chattooga County Sheriff’s
13
Department to review such warrants even where its officers were being used to assist
in the execution of the same. This testimony, which is unrefuted, shows that the
decision whether to review a search warrant procured by another state agency
remained entirely within the discretion of the Chattooga County Sheriff and/or any
other supervising officer. Thus, Everett’s decision not to review the search warrant
at issue is protected by official immunity.5
QCI’s argument also fails because it is premised on an erroneous assumption
– i.e., it assumes that the warrant in question did not allow the search of its offices.
“The requirement that a search warrant particularly describe the place to be searched
is fulfilled if the warrant contains a description that sufficiently permits a prudent
officer executing the warrant to locate the premises, person or property to be searched
definitely and with reasonable certainty, and without depending upon his discretion.”
State v. Hicks, 269 Ga. App. 741, 742-743 (605 SE2d 34) (2004) (citation and
punctuation omitted). The degree of specificity required in a warrant “is flexible and
will vary with the circumstances involved.” Fair v. State, 284 Ga. 165, 170 (3) (a)
(664 SE2d 227) (2008) (citation and punctuation omitted). In evaluating whether a
5
There is no allegation that Everett acted with actual malice in failing to review
the search warrant.
14
particular warrant sufficiently described the location to be searched, we read the
warrant as a whole and consider it in conjunction with other evidence. Hicks, 269 Ga.
App. at 743. Such evidence includes the supporting affidavit and whether one or more
of the executing officers was familiar with the location to be searched and was
therefore not dependent solely upon the warrant’s description to find the property.
See Anderson v. State, 249 Ga. 132, 135-136 (5) (287 SE2d 195) (1982).
The search warrant at issue was for a building “[l]isted with the Board of
Assessors of Chattooga County” as being located at 11195 Highway 27, Summerville;
as being “[NGCS], owned by Sandra Weaver”; as being a “[c]ommercial building
located across Highway [27] from McDonald’s restaurant and described as: a single
level building with rock appearance halfway up front and gray vinyl siding top front
with gray shingle roof, bearing signs in the window reading ‘Tax Service.’”
(Emphasis supplied.) The record shows that QCI’s offices were, in fact, located in the
building described in the warrant. Accordingly, even though the building had been
partitioned and QCI had begun using an address that was not listed in the county tax
records, the search warrant allowed police to search QCI’s offices.
A search warrant for a multi-unit structure will be valid, even if it fails to
specify the particular sub-unit to be searched, “where (1) there is probable cause to
15
search each unit; (2) the targets of the investigation have access to the entire
structure; or (3) the officers reasonably believed that the premises had only a single
unit.” Fletcher v. State, 284 Ga. 653, 655 (3) (670 SE2d 411) (2008) (punctuation and
footnote omitted). Although the warrant will be considered valid under any one of
these scenarios, in this case all three circumstances were present. First, the warrant
allowed police to search and seize the customer files and financial records, including
the bank and payroll records, of QCI. Weaver had access to QCI’s bank accounts and
served as the company’s accountant and may have been providing those services
through NGCS. Thus, as the affidavit in support of the warrant reflects, there was
probable cause to believe that the evidence sought could be found in either the QCI
offices or the NGCS offices. Additionally, Weaver, who was one of the targets of the
investigation, had access to the entire structure, as evidenced by the fact that she had
keys to both the interior and exterior doors used to access QCI’s space. Finally,
despite QCI’s use of the 11193 address, law enforcement had a reasonable belief that
the building at issue was in fact a single unit. In this regard, the record shows that
Weaver had owned the building since 1995; that until approximately August 2009
(less than one year before the search), the building had been a single unit; that in 2009
interior modifications were made that divided the building into two units; that Weaver
16
never informed the tax assessor’s office of the change in her building; that although
QCI had installed a mailbox on its side of the building, had placed the address 11193
on the mailbox, and began using 11193 as its business address, 11193 was never
recognized as an address for tax assessment purposes; that no evidence shows that the
11193 street address existed prior to August 2009; and that both the building and the
lot on which it was situated were listed in the relevant public records as having the
address 11195.
In light of the foregoing, we find that the warrant authorized the police to
search the entire building in which QCI’s offices were located, including the space
occupied by QCI. See U. S. v. Bradley, 644 F3d 1213, 1266 (III) (A) (1) (d) (11th Cir.
2011) (although the warrant referred to the building as bearing the name of a specific
company (Seratech) “the warrant’s invocation of Seratech merely described the
building to be searched. It did not restrict the agents’ search to the premises known
as or controlled by Seratech. Instead, the warrant permitted the search of the entire
building so long as the agents reasonably believed they would find ‘[i]tems to be
seized’ [under the warrant] in the location of their search.”) (Emphasis in original.)
Thus, Everett’s conduct in executing the warrant cannot support a claim for trespass,
and the trial court did not err in granting summary judgment to Everett on this claim.
17
3. We next address whether the trial court erred in granting summary judgment
against QCI on its claim for conversion.6 Under Georgia law, both cash and checks
may be the subject of a conversion claim and conversion is defined as
“an unauthorized assumption and exercise of the right of ownership over
personal property belonging to another, in hostility to his rights; an act
of dominion over the personal property of another inconsistent with his
rights; or an unauthorized appropriation. Any distinct act of dominion
wrongfully asserted over another’s property in denial of his right, or
inconsistent with it, is a conversion.”
Decatur Auto Center v. Wachovia Bank, N.A., 276 Ga. 817, 819 (583 SE2d 6) (2003)
(punctuation and footnote omitted), quoting Maryland Cas. Ins. Co. v. Welchel, 257
Ga. 259, 261 (1) (356 SE2d 877) (1987). In this case, QCI argues that Everett
converted the $13,000 cash belonging to QCI and which he seized from Weaver and
subsequently refused to return for approximately nine months.
6
We note that Everett cannot be held liable for the conversion of QCI’s
computers, business records, and other business property. For the reasons explained
in Division 2, the seizure of those items was justified under the search warrant. Thus,
to the extent that QCI asserted a conversion claim as to those items, we affirm the
grant of summary judgment to Everett. Our discussion in Division 3 relates only to
QCI’s claim for the alleged conversion of its cash.
18
On appeal, Everett offers four arguments to support the grant of summary
judgment in his favor on QCI’s conversion claim. Specifically, Everett argues that his
seizure of the cash was authorized by the search warrant; that his seizure of the cash
was authorized by law; that he did not unlawfully retain QCI’s funds; and that in
seizing and retaining the cash, he was exercising his discretionary authority and
therefore his conduct is protected by official immunity.
(a) Despite Everett’s arguments to the contrary, the search warrant did not
authorize his seizure of the cash — a fact that Everett admitted at his deposition. As
an initial matter, the cash was not discovered as the result of the search warrant’s
execution. Rather, police discovered the money during a warrantless search of
Weaver’s car and pocketbook. And at the time of the discovery, neither the car nor
the purse was on the premises covered by the warrant.
Moreover, even if we assume the warrant somehow authorized the search of
Weaver’s car and purse, the warrant did not authorize police to seize any cash they
located during the execution of the warrant. The law requires that warrants describe
with particularity the items to be seized and as a general rule, an officer may not seize
anything not specified in the warrant. See State v. Rogers, 319 Ga. App. 834, 836 (2)
(738 SE2d 667) (2013) (a “warrant shall particularly describe the things to be seized
19
and the search must be limited to that matter described”) (footnote omitted). Courts
have recognized only two exceptions to this rule. First, where the warrant contains
a residual clause allowing officers to seize “other evidence” of specifically
enumerated crimes, officers may seize any such evidence discovered during the
warrant’s execution. See Reaves v. State, 284 Ga. 181, 185-186 (2) (d) (664 SE2d
211) (2008). Similarly, even in the absence of a residual clause, “an officer in the
process of executing a lawful search warrant is authorized under OCGA § 17-5-21
(b) to seize any item, other than private papers, which he has probable cause to
consider tangible evidence of the commission of a crime, even though the property
is not listed in the warrant[,]” provided “that the officer did not violate the Fourth
Amendment in arriving at the place from which the evidence could be seen and that
the incriminating character of the evidence was immediately apparent.” Bryant v.
State, 304 Ga. App. 456, 460-461 (2) (696 SE2d 439) (2010) (citations, punctuation
and footnotes omitted).
In this case, the warrant did not authorize the seizure of cash or checks.
Furthermore, the warrant contained no residual clause and it authorized the police to
search only for evidence of the crimes of forgery and making false statements in
conjunction with the filing of construction liens. Such liens, in turn, were filed against
20
only those customers who had failed to pay QCI amounts QCI claimed it was owed.
As a matter of logic, cash in QCI’s possession could not serve as evidence in cases
involving customers who had refused to pay QCI. Accordingly, the cash was not
subject to seizure under the search warrant.
(b) Everett further argues that even if not authorized by the search warrant, the
seizure of the cash was proper as part of a police inventory incident to Weaver’s
arrest and/or that it was authorized by OCGA § 17-5-28.7 These arguments are
without merit.8
(i) Under OCGA § 17-5-1,”[w]hen a lawful arrest is effected a peace officer
may reasonably search the person arrested and the area within the person’s immediate
7
OCGA § 17-5-28 provides: “In the execution of the search warrant the officer
executing the same may reasonably detain or search any person in the place at the
time: (1) To protect himself from attack; or (2) To prevent the disposal or
concealment of any instruments, articles, or things particularly described in the search
warrant.”
8
Everett also argues that because QCI had no possessory or privacy interest in
Weaver’s purse, the company is without standing to challenge the seizure of the cash
from Weaver. This argument would be relevant if Benefield (as QCI’s sole officer
and shareholder) was challenging the State’s use of the cash and its discovery as
evidence of Benefield’s guilt in a criminal action against him. See, e.g., Jones v.
State, 320 Ga. App. 681, 685-686 (2) (740 SE2d 655) (2013). Benefield’s standing
to challenge the admissibility of such evidence in a criminal prosecution, however,
is wholly irrelevant to QCI’s claim for conversion of its cash.
21
presence.” In this case, however, there is conflicting evidence as to whether the cash
was seized before or after Weaver’s arrest. Accordingly, Everett is not entitled to
summary judgment on the grounds that his seizure of the money was authorized under
OCGA § 17-5-1, as part of an inventory search pursuant to Weaver’s arrest.
(ii) Nor was the seizure of QCI’s money authorized by OCGA § 17-5-28, which
allows police, under certain circumstances, “to detain or search any person” who is
present on the premises during the execution of a search warrant. Even assuming that
the discovery of the cash resulted from a search of Weaver conducted pursuant to this
code section, the fact remains that the cash was not subject to seizure, as it was not
among the items “particularly described in the search warrant.” OCGA § 17-5-28 (2).
(c) Everett further argues that QCI’s conversion claim must fail because he did
not wrongfully retain QCI’s money. Specifically, Everett argues that OCGA § 17-5-
22
54 (d) (1)9 and 17-5-55 (a)10 allowed him to retain the cash until the disposition of any
charges brought against either Benefield or Weaver. This argument, however, ignores
the fact that the cash was not lawfully seized pursuant to the search warrant. The
argument further assumes that the cash could or would be used as evidence against
Benefield and/or Weaver on the charges of forgery and the making of false statements
in connection with the filing of construction liens. As explained supra in Division 3
(a), however, the cash would not be relevant to Benefield’s or Weaver’s guilt as to
those crimes. Finally, Everett’s argument on this issue ignores the fact that he refused
to return the cash for approximately two months after the investigating entity (the
9
This Code section provides, in relevant part, that “[a]fter a period of 90 days
following the final verdict and judgment, when personal property that is in the
custody of a law enforcement agency was used as evidence in a criminal trial. . . it
shall be subject to disposition as provided in subsection (e) of this Code section . . .
if it is . . . [n]o longer needed in a criminal investigation or for evidentiary purposes
in accordance with Code Section 17-5-55 or 17-5-56.” OCGA § 17-5-54 (d) (1).
10
This Code section provides, in relevant part, that “[a]fter verdict and
judgment has been entered in any criminal case, the person who has custody of the
physical evidence introduced in the case shall inventory the evidence and create an
evidence log within 30 days of the entry of the judgment. Within 30 days following
the creation of the evidence log, physical evidence shall be returned to the rightful
owner of the property unless the physical evidence itself is necessary for the appeal
of the case, for a new trial, or for purposes of complying with this Code section or
Code Section 17-5-56.” OCGA § 17-5-55 (a).
23
Insurance Commissioner’s office) and the district attorney’s office had directed him
to do so.
(d) We agree with Everett’s assertion that he seized and retained the cash while
acting within the scope of his official duties as sheriff and that these acts were
discretionary in nature. Thus, qualified immunity will shield Everett from liability on
QCI’s conversion claim unless QCI can show that Everett acted “with actual malice
or with actual intent to cause injury.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (d). See
also Phillips v. Hanse, 281 Ga. 133, 134-136 (2) (637 SE2d 11) (2006). In this
context, actual malice means
“express malice,” i.e., “a deliberate intention to do wrong,” and does not
include “implied malice,” i.e., the reckless disregard for the rights or
safety of others. Merrow v. Hawkins, 266 Ga. 390, 391-392 [2] (467
SE2d 336) (1996). A “deliberate intention to do wrong” such as to
constitute the actual malice necessary to overcome official immunity
must be the intent to cause the harm suffered by the plaintiffs.
Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007).
Here, we find a jury question exists as to whether Everett acted with actual
malice in allegedly converting QCI’s money. Evidence from which the jury could
infer such malice includes the fact that seizure of the funds was not authorized by the
24
search warrant and that Everett acknowledged this fact at his deposition; that an
investigator with the insurance commissioner’s office warned Everett against seizing
the money for that reason; that despite the fact he took possession of the money,
Everett insisted to Weaver that the money was located at the Insurance
Commissioner’s office in Atlanta; that even after being directed by the district
attorney’s office to return the property seized pursuant to the search warrant, Everett
refused to return the cash; and that Everett returned the money only after being
directed to do so a second time by the district attorney, with the district attorney
having to put this instruction in writing. Additionally, there is some evidence showing
that Everett may have had some personal animosity towards Weaver and/or Benefield
as a result of strained family relations caused by Everett’s execution of the search
warrant against his cousins.
As the foregoing discussion demonstrates, the evidence shows genuine issues
of material fact as to whether Everett’s conduct constituted conversion and, if so,
whether Everett acted with actual malice. The trial court therefore erred in granting
summary judgment to Everett on QCI’s claim for the conversion of its cash.
For the reasons set forth above, we affirm the trial court’s grant of summary
judgment in favor of Everett on QCI’s claim for trespass, as well as any conversion
25
claim based upon Everett’s seizure of items named in the search warrant at issue. We
reverse the grant of summary judgment to Everett on QCI’s claim for conversion of
its cash. The case is remanded for proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part. Andrews, P. J., and Miller, J.,
concur.
26