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 itsside 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 doesthe 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 Gaddissubmitted in support

of the search warrantset 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 bySandra 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 thatsuch 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 wassearched 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 wasthat 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 asto whether the cash wasseized

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 seeksto 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 immunityapplies”;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 merelyministerialmust

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 claimsfor 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 showsthat 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 includesthe 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 ofChattoogaCounty” 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.’”

(Emphasissupplied.) The record showsthat 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 accessto 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 addressfor tax assessment purposes; that no evidence showsthat 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.

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On appeal, Everett offers four arguments to support the grant of summary

judgment in hisfavor on QCI’s conversion claim. Specifically, Everett arguesthat 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 itemsto be seized and as a general rule, an officer may notseize

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’simmediate

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 withoutstanding 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.

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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 groundsthat his seizure of the moneywas authorized under

OCGA § 17-5-1, as part of an inventory search pursuant to Weaver’s arrest.

(ii) Nor wasthe seizure of QCI’smoney authorized byOCGA § 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 froma 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 arguesthat 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)10allowed himto 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 ignoresthe 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).

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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 willshield 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

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search warrant and that Everett acknowledged this fact at his deposition; that an

investigator with the insurance commissioner’s office warned Everett againstseizing

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 thisinstruction 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

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claim based upon Everett’sseizure 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.

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