Taylor v. Powertel Inc.

Plaintiff failed to show that the erroneous out-of-state taxes included in his cellular phone bill constituted an identifiable fund to which he had an immediate right of possession.

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Bruce Taylor, a Savannah-Chatham County, Georgia subscriber, sued his digital phone service provider Powertel, Inc., a corporation principally based in Jacksonville-Duval County, Florida, for conversion for the inclusion of taxes from Jacksonville-Duval County, on his monthly cellular phone bill amounts attributable to such taxes. The trial court granted summary judgment as to his claim for punitive damages and tried his claim for conversion before a jury. At the close of plaintiff’s case, Powertel moved for a directed verdict for the claim of conversion, which the trial court granted. Plaintiff appeals these rulings of the trial court. We affirm, because this action should have been an action for money had and received and not for the conversion of money for the following reasons:

In October 1997, plaintiff contracted with Powertel for cellular phone service in Chatham County, Georgia. On receipt of his first bill, plaintiff saw what he believed to be excess taxes included within the total service bill. Plaintiff immediately complained to Powertel’s customer service, demanding an explanation of these taxes and an adjustment of his account. The Powertel customer service representative told the plaintiff that the “taxes are what they are” and that he would have to pay the taxes as part of the total bill. Plaintiff paid the first bill, but the second bill contained similar high taxes. Therefore, plaintiff called again and was told that he must pay such charges as part of the bill. After receiving four bills with the high tax charges and receiving the same response from Powertel, plaintiff terminated the cellular phone service. In November of 1998, Powertel reimbursed plaintiff the amount of the total bill that he paid for the taxes of $215.79 on his four phone bills, but he refused to accept the amount.

Taylor v. Powertel Inc.

Plaintiff failed to show that the erroneous out-of-state taxes included in his cellular phone bill constituted an identifiable fund to which he had an immediate right of possession.

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