TITLE 51 TORTS

Section 10. Injuries to Personalty, 51-10-1 through 51-10-6.

ARTICLE 5 ABUSIVE LITIGATION

51-10-6. Owner's right of action for damage to or theft involving personal property.

Any owner of personal property shall be authorized to bring a civil action to recover damages from any person who willfully damages the owner's personal property or who commits a theft as defined in Article 1 of Chapter 8 of Title 16 involving the owner's personal property. The owner of the personal property may recover as follows:
1. In any such action, the property owner may recover compensatory damages which may include, in addition to the value of the personal property, any other loss sustained as a result of the willful damage or theft offense; and
2. In any such action in which the value of the total claim, including exemplary damages, is less than $5,000.00, the property owner may recover compensatory damages, as described in paragraph (1) of this subsection, and additionally may recover liquidated exemplary damages equal to $300.00 or triple the amount of the entire loss sustained by the property owner as a result of the willful damage or theft offense, whichever is greater, and the cost of maintaining the civil action if all of the following apply:
  1. The property owner, at least 30 days prior to the filing of the action, provided written notice of a demand by personal delivery or certified mail or statutory overnight delivery, return receipt requested, for payment of the value of that personal property, the amount of any other loss sustained as a result of the willful damage or theft offense, and the liquidated exemplary damages set out in this paragraph upon the person who willfully damaged the property or who committed the theft offense;
  2. Either the person who willfully damaged the personal property or who committed the theft offense did not make payment to the property owner of the amount specified in the demand within 30 days after the date of receipt of the written demand or did not enter into an agreement with the property owner during that 30 day period for such payment, or the person who willfully damaged the personal property or who committed the theft offense entered into an agreement with the property owner during that 30 day period for such payment but the person did not make such payment in accordance with the terms of the agreement; and
  3. The property owner did not file a civil complaint against the person who willfully damaged the personal property or who committed the theft offense prior to the expiration of 30 days after the date of service of the written demand upon the person, or, if the person had entered into an agreement with the property owner during that 30 day period for payment, prior to the day on which the person failed to make payment in accordance with the terms of the agreement, whichever is applicable.
The person or persons against whom the property owner brings a civil action pursuant to this Code section shall be entitled to recover reasonable attorney's fees and court costs upon a finding that the claimant raised a claim which was without reasonable, factual, or legal support.

(c) For purposes of paragraph (2) of subsection (a) of this Code section, written notice of demand for payment shall be substantially as follows:

"Upon reasonable cause, notice is given of (my) (our) demand for payment of damages in the amount of (state amount claimed: total should be $300.00 or triple the amount of the entire loss sustained by the property owner as a result of the willful damage or theft offense, whichever is greater) arising out of your (willful damage, theft, or unlawful conversion) of the following personal property owned by (the undersigned or other owner) : (List affected property) __________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Pursuant to Code Section 51-10-6 of the Official Code of Georgia Annotated, you are further notified that if the above-stated amount is not paid, or a written agreement as to its payment is not reached, within 30 days of the date you receive this letter, (I) (we) (other owner) intend to bring an action against you for such amount, plus attorney's fees, plus court costs, and such other relief as the law provides. ________________________"

If a property owner whose personal property was willfully damaged or was the subject of a theft offense provides written notice of demand for payment upon a person who willfully damaged the personal property or who committed the theft offense, and the person makes payment in accordance with the demand within 30 days after the date of service of the written demand upon him or the person enters into an agreement with the property owner during that 30 day period for such payment and makes payment in accordance with the agreement, the property owner shall not file a civil complaint against the person in relation to the willful property damage or theft offense.

In a civil action to recover damages for willful damage to personal property or for a theft offense, the trier of fact may determine that an owner's property was willfully damaged or that a theft offense involving the owner's personal property has been committed, whether or not any person has pleaded guilty to or has been convicted of any criminal offense or has been adjudicated delinquent in relation to any act involving the owner's personal property.

As used in this Code section, the term "value" means the retail value of any personal property that is offered for sale by a mercantile establishment or the replacement value of any other personal property.

If a civil action is filed pursuant to Article 4 of Chapter 12 of Title 44 to recover personal property or damages resulting from willful damage to or theft of such personal property, no civil action authorized by this Code section shall be permitted.

The measure of damages provided for in this Code section shall not be applicable in cases involving the unauthorized cutting or cutting and carrying away of timber from the property of another. In such cases, damages shall be awarded in accordance with Code Section 51-12-50.

(Code 1981, §51-10-6, enacted by Ga. L. 1988, p. 404, § 1; Ga. L. 1991, p. 1126, §§ 1-3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2014, p. 404, § 2-5/SB 382; Ga. L. 2014, p. 695, § 5/HB 790.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2014, p. 404, § 3-1/SB 382, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2014, and shall apply to all conduct occurring on or after such date."

JUDICIAL DECISIONS

Failure to state claim.

- Plaintiff failed to plead a claim to recover damages for conversion under O.C.G.A. § 51-10-6 based on a violation of two criminal statutes - theft by conversion of payments for property improvements and theft by taking - as the plaintiff did not allege any of the necessary elements to establish the violations and did not allege that the defendant was charged with or found guilty of a violation of those statutes. Harlander v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017); Vanbenschoten v. Turner (In re Turner), Bankr. (Bankr. S.D. Ga. Mar. 31, 2017).

No private right of action.

- Consent judgment entered against the debtor with respect to funds for a construction project did not establish nondischargeability for willful conversion of payments for real property improvements because the consent judgment did not establish a constructive trust in favor of the creditor for the debtor's willful conversion under state laws as there was no evidence the debtor was guilty of a violation of a criminal statute and there was no civil action to remedy the harm from that particular criminal law violation. Pioneer Constr., Inc. v. May (In re May), 518 Bankr. 99 (Bankr. S.D. Ga. 2014).

Although O.C.G.A. § 51-10-6 expressly provided for a civil recovery for thefts, under Georgia case law, that statute could not be used to establish a civil remedy for the specific crime of theft by conversion. Nor had O.C.G.A. § 51-1-6 been used to create a civil remedy for violations of the theft by conversion statute. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), Bankr. (Bankr. N.D. Ga. Aug. 24, 2017).

Cited in Ragsdale v. South Fulton Mach. Works, Inc. (In re Whitacre Sunbelt, Inc.), 211 Bankr. 411 (Bankr. N.D. Ga. 1997); Action Marine, Inc. v. Cont'l Carbon, Inc., 481 F.3d 1302 (11th Cir. 2007); Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008).

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2018 Georgia Code 51-10-6 | Car Wreck Lawyer