(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).
Removal of homeowners' sign presented jury question.
- In a dispute involving a homeowners' association's (HOA) claim of a pedestrian easement access across a subdivision lot to a lake, the term "10' PEDESTRIAN ESMT" on the plat was void for uncertainty of description. The lot owners' counterclaims for trespass, theft by taking (for removal of a sign), interfering with the right of quiet enjoyment, attorney's fees, and punitive damages presented jury questions; however, their claim for intentional infliction of emotional distress was subject to summary judgment. The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019).
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).
CHAPTER 11 DEFENSES TO TORT ACTIONS Article 1 General Provisions.- Employee's assumption of risk of ordinary risks of employment, § 34-7-23.
Assumption of risks of employment by railroad employees, § 34-7-43.
RESEARCH REFERENCESLast Clear Chance, 32 POF2d 625.
The Seatbelt Defense, 3 POF3d 171.
Act of God, 6 POF3d 319.
Existence of "Sudden Emergency", 8 POF3d 399.
Assumption of Risk Defense in Sports or Recreation Injury Cases, 30 POF3d 161.
Plaintiff's Negligence, Provocation or Assumption of Risk as Defense in Dogbite Case, 39 POF3d 133.
Application of the "Plain View Doctrine" to Trip-and-Fall Claims, 41 POF3d 65.
Proof of Seatbelt Defense, 65 POF3d 1.
ALR.- Tennis club's liability for tennis player's injuries, 52 A.L.R.4th 1253.
ARTICLE 1 GENERAL PROVISIONS