BRYAN, Judge.
Linda Pike, the defendant below, appeals from a summary judgment in favor of the plaintiff, Brenda Reed.
Pike and Reed are sisters. In 1989, Reed acquired title to a house located on Highway 69 in Oakman ("the house") and took out a policy of insurance covering the house and the contents of the house. Reed lived in the house until September 1993. In September 1993, Reed moved out of the house, and the mother of Reed and Pike ("the mother") began living in the house. After the mother began living in the house, some of the contents of the house ("the contents") were owned by the mother and some were owned by Reed.
In 2004, Reed executed a deed that made herself, her husband, and the mother the joint owners of the house. In early August 2005, a fire ("the fire") damaged the house and the contents and injured the mother. At the time of the fire, Reed had a policy of homeowners' insurance that had
Reed was living in Iowa when the fire occurred and, due to various health problems, was unable to travel to Alabama to make an insurance claim based on the damage caused by the fire. Accordingly, on August 25, 2005, Reed executed a power of attorney ("the power of attorney"), which stated, in pertinent part:
Reed gave a copy of the power of attorney to Alfa. Reed and the mother provided Pike with information regarding the contents, and Pike used this information to prepare an inventory of the contents that were damaged in the fire ("the inventory"). The inventory listed both items that were owned by Reed and items that were owned by the mother. Pike submitted a claim to Alfa under the contents coverage of the policy and submitted the inventory as part of the claim.
On December 5, 2005, Alfa issued a check payable to Reed in the amount of $41,698 ("the Alfa check") in payment of the claim for damage to the contents and sent it to Pike. Pike deposited the Alfa check into her and her husband's joint checking account ("the Pikes' account") instead of delivering it to Reed. Pike's husband and the mother assigned values to the individual items listed on the inventory Pike had submitted to Alfa with the contents claim. Pike's husband and the mother assigned a total value of $15,712 to the items owned by Reed and a total value of $25,986 to the items owned by the mother. Pike wrote Reed a check in the amount of $15,712 and withheld $25,986 of the proceeds of the Alfa check, which she spent for the benefit of the mother.
On February 2, 2006, Reed sued Pike, alleging a claim of conversion. Answering the complaint, Pike denied liability. Subsequently, Pike moved the trial court for a summary judgment. Among other things, Pike supported her summary-judgment motion with her affidavit, which stated, in pertinent part:
Pike asserted two grounds for her summary-judgment motion. First, she asserted that Reed could not establish one of the essential elements of a conversion claim, i.e., that Pike's withholding of $25,986 in proceeds of the Alfa check was wrongful, because, Pike said, Reed had testified that she would have allowed her mother to have as much of the proceeds of the Alfa check as she wanted. Second, Pike asserted that she could not be liable for conversion because the money she had allegedly converted was not "specific money capable of identification," which is a necessary condition of establishing a claim of conversion with respect to money.
Reed filed a cross-motion for a partial summary judgment with respect to liability on the ground that Pike had converted the Alfa check because, Reed said, the power of attorney did not authorize Pike to deposit the Alfa check into the Pikes' account. In opposition to Pike's summary-judgment motion, Reed asserted (1) that her willingness to give the mother as much of the proceeds of the Alfa check as the mother wanted did not authorize Pike to deposit the Alfa check into the Pikes' account and (2) that the Alfa check did indeed constitute specific money that was capable of identification for purposes of a conversion claim.
In opposition to Reed's partial-summary-judgment motion, Pike asserted that the language of the power of attorney was broad enough to authorize Pike to deposit the Alfa check in the Pikes' account and to determine how the proceeds should be apportioned between Reed and the mother. In addition, she asserted that Reed was not entitled to a partial summary judgment because, she said, genuine issues of material fact existed; specifically, she argued (1) that Reed had testified that she had executed a document revoking the power of attorney before Pike deposited the check into the Pikes' account but had not produced the original of that document and, that, therefore, a genuine issue of material fact existed regarding whether Reed had validly revoked the power of attorney and (2) that issues of material fact existed regarding which of the contents belonged to Reed and which belonged to the mother.
Following a hearing, the trial court entered an order denying Pike's summary-judgment motion and granting Reed's partial-summary-judgment motion. Pike filed two appeals from the partial summary judgment in favor of Reed.
Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).
Pike first argues that the trial court erred in entering a summary judgment in favor of Reed because, Pike says, the money she allegedly converted was not "specific money capable of identification" and, therefore, could not be the subject of a claim of conversion. Pike directs our attention to the fact that, after she deposited the Alfa check into the Pikes' joint account, the proceeds of the Alfa check were commingled with funds belonging to the Pikes and were no longer capable of being identified. Therefore, Pike says, she could not be liable for conversion when she withheld $25,986 of the proceeds of the Alfa check from Reed because those withheld proceeds had become commingled in the Pikes' account and, consequently, were no longer "specific money capable of identification."
Reed, on the other hand, argues that the conversion occurred when Pike exercised dominion over the Alfa check by depositing it into the Pikes' account without Reed's authorization. Thus, according to Reed's analysis, Pike converted the entire Alfa check but mitigated the amount of damages that could be assessed against her by later giving Reed $15,712 of the proceeds of the Alfa check. Reed points out that the Alabama Supreme Court has held that a check such as the Alfa check constitutes specific money that is capable of being identified for purposes of a conversion claim. See Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala.1994).
In Crown Life, Edward C. Land, a general insurance agent, had sold Jack C. Smith and his wife, Jean B. Smith, several whole-life policies issued by Crown Life Insurance Company ("Crown Life"). The Smiths subsequently learned that Land had wrongfully taken money that belonged to them by forging their endorsements on Crown Life checks made payable to them and depositing those checks into bank accounts Land controlled. The Smiths then sued Land and Crown Life, alleging, among other things, claims of conversion and wantonness. The trial court entered a default judgment against Land, and the Smiths' claims against Crown Life proceeded to trial before a jury. At the request of the Smiths, the trial court submitted to the jury only the Smiths' claims of conversion and wantonness. The jury returned a verdict against Crown Life, and the trial court entered a judgment on the verdict; Crown Life appealed to the supreme court. On appeal, Crown Life argued,
657 So.2d at 823-24 (emphasis added).
In the case now before us, although the power of attorney granted Pike "full Power of Attorney to represent [Reed] in all matters relating to [Reed's] property located [on] Highway 69 [in] Oakman, Alabama 35579," it did not expressly grant her the authority to deposit the Alfa check into the Pikes' account. The absence from the power of attorney of a provision expressly granting Pike such authority appears to support Reed's argument that a conversion occurred when Pike deposited the Alfa check into the Pikes' account.
Pike, however, argues that the holding of a plurality of the Alabama Supreme Court in Miller v. Jackson Hospital and Clinic, 776 So.2d 122, 124-25 (Ala.2000), indicates that the absence of a provision granting her the express authority to deposit the Alfa check into the Pikes' account is immaterial. In Miller, Roy Lee Miller ("Roy Lee"), while hospitalized at Jackson Hospital, suffered severe burns. Subsequently, Roy Lee executed a durable power of attorney that granted his uncle, Charles Miller ("Charles"), the power, among other things, to "`institute, prosecute, defend, compromise, arbitrate and
On appeal, a plurality of the supreme court held, among other things, that the trial court had erred in concluding that the power of attorney did not authorize Charles to file a personal-injury action on behalf of Roy Lee. In pertinent part, the opinion stated:
776 So.2d at 124-25.
Miller is distinguishable from the case now before us because, in Miller, Charles was acting in accordance with the interest and wishes of Roy Lee whereas, in the case now before us, Pike was acting contrary to the interest and wishes of Reed. Because Pike was acting contrary to the interest and wishes of Reed in depositing the Alfa check into the Pikes' account, the case now before us is analogous to Lamb v. Scott, 643 So.2d 972 (Ala.1994), rather than Miller. Accordingly, we conclude that Pike's depositing the Alfa check into the Pikes' account was not authorized by the power of attorney because the power of attorney did not expressly authorize it. See Lamb. Because Pike's depositing the Alfa check into the Pikes' account was not authorized by the power of attorney, it constituted a wrongful exercise of dominion over the Alfa check. Because checks can constitute specific money capable of identification and, therefore, will support a conversion claim, see Crown Life, supra, we find no merit in Pike's argument that the money Reed claims Pike converted was not specific money capable of identification for purposes of a conversion claim.
Pike also argues that she did not commit the tort of conversion because, she says, her withholding $25,986 of the proceeds of the Alfa check was not wrongful because, she says, she spent those proceeds for the exclusive benefit of the mother and Reed herself testified that she would have allowed the mother to have as much of the
Pike also argues that Reed's testifying that she had executed a revocation of the power of attorney created a genuine issue of material fact that precluded the granting of Reed's summary-judgment motion. However, this argument has no merit because Reed did not base her motion on the alleged revocation of the power of attorney; rather, her motion presupposed that the power of attorney was valid and in force when Pike deposited the Alfa check into the Pikes' account.
Pike also argues that the trial court erred in granting Reed's summary-judgment motion because genuine issues of material fact existed regarding how the proceeds of the Alfa check should have been apportioned between Reed and the mother. However, factual issues regarding the apportionment of the proceeds of the Alfa check after the Alfa check had been converted were not material because: (1) as discussed above, Pike committed the tort of conversion when she deposited the Alfa check into the Pikes' account without Reed's authorization; (2) as discussed above, Pike's use of some of the proceeds of the Alfa check for the benefit of the mother, although it might have constituted mitigation of the amount of damages that could be assessed against Pike for the conversion of the Alfa check, did not constitute a complete defense to Reed's claim of conversion; and (3) as discussed above, Pike waived any argument she may have had that she was entitled to mitigation of the amount of damages that could be assessed against her because she did not present that argument to the trial court and has not presented it to this court; therefore, factual issues relating to the apportionment of the proceeds of the Alfa check between Reed and the mother would only be material to the amount of mitigation Pike would be entitled to, an issue Pike had waived by her failure to raise it in the trial court and before this court. "Conflicting evidence on an immaterial fact issue will not rebut a summary-judgment movant's prima facie showing that he is entitled to a summary judgment." Blackmon
Pike's final argument is that Reed failed to establish that she was entitled to a judgment as a matter of law. We disagree for the reasons already discussed above. We note that the amount of damages assessed by the trial court, $26,604, exceeds the difference between the amount of the Alfa check, $41,698, and the amount of the check Pike gave Reed, $15,712. However, we cannot reverse the trial court's judgment on the basis of this discrepancy because Pike has not specifically argued to us that this discrepancy constituted error. See Boshell v. Keith, 418 So.2d at 92 ("When an appellant fails to argue an issue in its brief, that issue is waived.").
For the foregoing reasons, the summary judgment in favor of Reed is affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.