Matthias v. Bingley

• Decision Date: 26 July 1990
• Docket Number: No. 88-6125,88-6125
• Citation: 906 F.2d 1047
• Parties: Jerry W. MATTHIAS and Kathryn A. Schurber, Plaintiffs-Appellees, v. Dallas H. BINGLEY, et al., Defendants, City of Houston, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1047

906 F.2d 1047

Jerry W. MATTHIAS and Kathryn A. Schurber, Plaintiffs-Appellees, v. Dallas H. BINGLEY, et al., Defendants City of Houston, Defendant-Appellant.

No. 88-6125.

United States Court of Appeals, Fifth Circuit.

July 26, 1990.

Robert L. Cambrice, Murray E. Malakoff, Asst. City Attys., Clarence A. West, City Atty., Houston, Tex., for defendant-appellant.

Robert A. Shults, Sheinfeld, Maley & Kay, Clinard J. Hanby, Essmyer & Hanby, Houston, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG, POLITZ and JONES, Circuit Judges.

GOLDBERG, Circuit Judge:

Statement of Facts

In August, 1982, Dallas H. Bingley, Allen Harris, and other City of Houston ("the City") police officers lawfully seized property belonging to plaintiffs Jerry Matthias and Kathryn Schurber. The property included stereo equipment, a video cassette recorder, a movie projector, three cameras, binoculars, two briefcases, silver serving pieces, jewelry, gold coins, hunting knifes and rifles, and personal mementos. The two detectives, Harris and Bingley, tagged the plaintiffs' property into three groups numbered 5-518-1, 5-521-1, and 5-539-7. They turned the seized property over to the Property & Supply Division of the Houston Police Department. All of Harris's and Bingley's actions fully complied with the applicable City ordinance and police department regulations.

Even though the Property & Supply Division stored the property, the two detectives controlled the property's disposition. The Property & Supply Division could not do anything with the property until the detectives completed a "Disposition Authorization Form." After holding the property for ninety days, the Property & Supply Division sent Disposition Authorization Forms to the two detectives. The forms list seven options for handling the property: (1) hold for court case; (2) hold for investigation; (3) hold for possible surety bond indemnity agreement; (4) photograph and release to owner; (5) release to owner (or authorized person); (6) dispose of as authorized by City ordinance; (7) not wanted by this division, seek authorization from ____________.

Options (4) and (5) require the officer completing the form to state the method of notifying the owner or authorized person. The options list three forms of notification: (a) in person, (b) by phone, or (c) by mail (must be certified, return receipt requested, if property is valued at $200 or more). An asterisk next to option (6) refers to a provision that appears at the bottom of the form. That provision reads:

Alternative # 6 [Dispose of as Authorized by City Ordinance] is to be selected only after the property is no longer needed as evidence or for investigation, and after all reasonable efforts to return the property to the rightful owner have been exhausted by the investigative division.

City Ordinance Section 34-31 establishes the steps an officer must take before instructing the Property & Supply Division to dispose of the property (option (6) on the form). ¹ The ordinance requires the police officers to "make a good faith effort to identify, locate and give notice to the lawful owner of any unclaimed property." The ordinance does not specify how officers determine the identity of the lawful owner. Nor does it require officers to notify the person from whom they seized the property unless the officers believe that person is the lawful owner of the property. If the officers decide that the person does not own the property, the officers need not notify that person or give her an opportunity to be heard. If, after a good faith effort, the officers cannot determine the identity of the lawful owner, they may authorize the Property & Supply Division to dispose of the property as provided in the ordinance.

The two detectives completed at least four Property Disposition Forms. On November 23, 1982 and again on May 26, 1983, Harris instructed the Property & Supply Division to hold for investigation the batch of property tagged 5-521-1 (option 2). On November 17, 1982, Bingley instructed the Property & Supply Division to dispose of the batch tagged 5-518-1 as authorized by City ordinance (option 6). Neither the detectives nor the Property & Supply Division notified Matthias and Schurber that the City planned to dispose of the property.

On November 26, 1982, the Property & Supply Division sent a Property Disposition Form to the detectives for the property in batch 5-539-7. When the form returned to the Property & Supply Division, "Harris" appeared in longhand on the upper right hand corner of the form. Option 6, which directs the Property & Supply Division to dispose of the property as authorized by City ordinance, had been checked. No-one dated and signed the form as required. When the Property & Supply Division received the form for batch 5-539-7, the person sorting the Property Disposition Forms placed the unsigned form in a stack to be "Disposed of as Authorized by City Ordinance." Because no-one signed the form, the Property & Supply Division should have returned the form to the Burglary and Theft Division for a signature and a date. No-one in the Property & Supply Division attempted to notify Matthias and Schurber of the pending disposition.

On December 5, 1982, the Property & Supply Division transferred the property in batch 5-518-1 to the City's Treasury Department's Surplus and Salvage Division. In doing so, the Property & Supply Division complied fully with police department regulations. On January 25, 1983, the Property & Supply Division transferred the property in batch 5-539-7 to the City's Surplus and Salvage Division. Because no one had signed the form as required, the transfer did not comply with police department regulations. The City sold most of the property in the two batches at public auctions in May and June, 1983.

On July 27, 1983, Harris and Bingley discovered that the City had disposed of the plaintiffs' property in batch 5-539-7. On August 9th, Captain Earl B. Goodrum, chief of the Property & Supply Division, learned of the disposition. Goodrum instructed H.L. McCormick, a sergeant in the Property & Supply Division, to investigate the unauthorized disposition of the property in batch 5-539-7. He did not authorize investigation of batch 5-518-1 (presumably because the police department fully complied with department regulations when it disposed of that batch). McCormick reported that Harris apparently had the responsibility to complete the form for batch 5-539-7. Goodrum concluded that human error caused the unauthorized disposition. The police chief then instructed the Houston Internal Affairs Division to investigate the disposal of the property in batch 5-539-7. He did not instruct the Internal Affairs Division to investigate the disposal of the property in batch 5-518-1. Like the Property & Supply Division, the Internal Affairs Division concluded that human error caused the unauthorized disposal of batch 5-539-7. As a result of these investigations, the Property & Supply Division changed its procedures. Now property may not be disposed of until the receiving Property & Supply Division personnel and either the Property & Supply Division lieutenant or day shift sergeant signs the Property Disposition Form.

After the officers seized their property, Matthias and Schurber repeatedly asked the City to return their property. Finally, a state judge gave Matthias and Schurber a court order instructing the City to return the property. When they presented the court order in January, 1984, they discovered that the City had sold most of the property in batches 5-518-1 and 5-539-7 and converted the rest to City use. The plaintiffs did recover some of the converted property.

Matthias and Schurber sued the City and the police department ² under 42 U.S.C. Section 1983. ³ They challenged the dispositions of the property in both batches 5-518-1 and 5-539-7. The plaintiffs contended that the City violated their due process rights because it failed to give them notice and an opportunity to be heard before disposing of their property.

The jury found for the plaintiffs. In its answers to special interrogatories, the jury found that the defendants followed official City policy when they failed to give notice and an opportunity to be heard to Matthias and Schurber before disposing of their property. The jury also found that the failure to give notice and an opportunity to be heard proximately caused the loss of Matthias's and Schurber's property.

The plaintiffs sought $55,000 in compensatory damages, pre- and post-judgment interest, fees, and costs. The jury awarded them $55,374.88 in damages. After an evidentiary hearing, the district judge awarded the plaintiffs $25,241.88 in prejudgment interest and $67,164.81 in attorney's fees and costs.

Standard of Review

The City moved for a directed verdict at the close of the plaintiffs' evidence and at the close of all the evidence but did not move for a judgment n.o.v. Because the City moved for a directed verdict, we may examine the sufficiency of the evidence. See Zervas v. Faulkner, 861 F.2d 823, 832 n. 9 (5th Cir.1988). But see Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088 (5th Cir.1981); University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 548 (5th Cir.1974); and Stockton v. Altman, 432 F.2d 946 (5th Cir.1970). ⁴ We consider all the evidence, not just the evidence supporting the nonmoving party's case, in the light most favorable to the nonmoving party. Boeing Co. v. Shipman, 411 F.2d 365, 374-375 (5th Cir.1969) (en banc). However, because the City did not move for a judgment n.o.v., we may not reverse and render a judgment in favor of the City if we are so inclined. Instead, we only may reverse and order a new trial. Zervas, 861 F.2d at 832 n. 9; Smith v. Trans-World Drilling Co., 772 F.2d 157 (5th Cir.1985); 5A Moore's Federal Practice Section 50.12 (2d...