Crowe v. City of Athens

• Decision Date: 19 March 1999
• Docket Number: No. 2980013.,2980013.
• Citation: 733 So.2d 447
• Parties: Randy CROWE v. CITY OF ATHENS, Alabama, a municipal corporation, and Mignon Bowers.
• Court: Alabama Court of Civil Appeals

733 So.2d 447

Randy CROWE v. CITY OF ATHENS, Alabama, a municipal corporation, and Mignon Bowers.

No. 2980013.

Court of Civil Appeals of Alabama.

March 19, 1999.

Milton E. Yarbrough, Jr., Huntsville, for appellant.

J. Jeffery Rich of Sirote & Permutt, P.C., Huntsville, for appellees.

ROBERTSON, Presiding Judge.

Randy Crowe appeals from a judgment of the Limestone County Circuit Court dismissing his claims against Mignon Bowers and the City of Athens ("the City") arising from the alleged detention of a grain drill planter. We reverse the judgment as to Bowers, but affirm the judgment as to the City. On December 1, 1997, Crowe filed a complaint that stated, in pertinent part:

"1. During or about January, 1995, defendant Mignon Bowers while acting within the scope of her employment as a municipal officer of the defendant City of Athens, Alabama, with the aid of unknown defendants, did negligently order, cause, permit or fail to prevent the wrongful conversion and appropriation of a John Deere grain drill planter from the possession of the plaintiff to the possession and to the benefit of the defendant City of Athens, Alabama, by wrongfully taking the said John Deere grain drill planter and carrying it away.

". . . .

"2. Written demand for the return of the John Deere grain drill planter to his possession having been made by the plaintiff, on or about the 17th day of July, 1997, and continuing to the present day defendant Mignon Bowers and other unknown defendants acting within the scope of their employment by the defendant City of Athens, Alabama, have wrongfully exercised dominion over the said John Deere grain drill planter in known violation of the law to the exclusion of and in defiance of the plaintiffs rights with insult, contumely and malice.

". . . .

"3. The notice requirements to defendant City of Athens, Alabama, a municipal corporation, of Code of Alabama, 1975, Sections 11-47-23 and XX-XX-XXX have been fully complied with prior to the filing of this Complaint."

The City and Bowers filed a motion to dismiss, alleging, among other things, (1) that Crowe's complaint failed to state a claim upon which relief could be granted; (2) that Crowe had failed to file a proper notice of claim with respect to his claim against the City; (3) that the defendants were immune from liability; and (4) that Crowe's claims were time-barred. Crowe filed a response in opposition, attaching a copy of a "notice of claim" filed with the City on July 17, 1997, and a photograph of the allegedly detained property; thereafter, both parties filed legal arguments in support of their positions. After a hearing, the trial court granted the defendants' motion and entered a judgment dismissing the case.

Crowe appealed to the Alabama Supreme Court. That court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

We must first consider the proper standard of review with respect to the trial court's judgment, an issue the parties have not addressed. Rule 12(b), Ala. R.Civ.P., provides that "[i]f, on a motion... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."¹ In this case, Crowe submitted a copy of his notice of claim and a photograph of the allegedly detained grain drill planter, and these items were not excluded by the trial court. Under Rule 12(b), such a course of events would ordinarily result in review of any resulting judgment under the standard of review applicable to summary judgments.

However, the Supreme Court noted in Lawson State Community College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988), overruled on other grounds by Berner v. Caldwell, 543 So.2d 686 (Ala. 1989)

:

"`[A] reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.'"

529 So.2d at 928 (quoting Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C.Cir.1985)). We conclude that the advice of the Lawson State court is particularly apt in this factual setting. The motion to dismiss challenged the legal sufficiency of Crowe's complaint; Crowe's initial response to the motion, other than including the notice of claim and the photograph, did not present any matter other than legal argument directed to the grounds alleged in the motion; the parties thereafter confined themselves to briefs arguing these legal grounds, rather than submitting any affidavits or deposition excerpts; and the trial court did not expressly afford the parties a "reasonable opportunity to present all material made pertinent to ... a [summary-judgment] motion" (see Rule 12(b), Ala. R.Civ.P.). These factors, as well as the complete absence of pertinent record evidence going to the merits of the parties' claims and defenses, lead us to conclude that to treat the trial court's judgment as anything other than a dismissal under Rule 12(b)(6) would not "be fair to both parties" in this instance. Lawson State, 529 So.2d at 928.

Accordingly, we review the trial court's judgment as we would a dismissal pursuant to Rule 12(b)(6), Ala.R.Civ.P., for failure to state a claim. The appropriate standard of review was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted):

"On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief."

"To establish conversion, a plaintiff must show a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another's property, or a wrongful detention or interference with another's property." Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 828 (Ala.1995). With respect to the individual defendant, Bowers, the complaint alleges that she "cause[d]" the "conversion" of Crowe's grain drill planter "by wrongfully taking the ... grain drill planter and carrying it away." This language states a cause of action for conversion under Alabama law.

The statute of limitations governing conversion claims is § 6-2-34(3), Ala. Code 1975; under that statute, "[a]ctions for the detention or conversion of personal property" "must be commenced within six years" of their accrual. Here, the wrongful conduct alleged by Crowe occurred in January 1995, less than three years before he filed his complaint. Therefore, Crowe's claim against Bowers is not time-barred.

Bowers argues that the complaint was due to be dismissed because of her claim of immunity arising from her alleged performance of a discretionary function. She relies upon § 895D of the Restatement (Second) of Torts (1979), which our Supreme Court has adopted as part of the law of this state (see Grant v. Davis, 537 So.2d 7, 8 (Ala.1988)

), and which provides that a "public officer" acting within the general scope of his or her authority will not be subjected to tort liability for an administrative act or omission if he or she "is immune because engaged in the exercise of a discretionary function." Neither party has provided authority, and we are aware of none, for the proposition that the operation of § 895D as an affirmative defense with respect to state officials differs from its operation as to municipal officials.

Our Supreme Court noted in Phillips v. Thomas, 555 So.2d 81 (Ala.1989), that "qualified immunity from suit for negligence arising out of a discretionary act is an affirmative defense which must be raised and proved by the defendant" (emphasis added), and that "a plaintiff's complaint against a state official or employee, seeking damages for personal injury arising out of the negligent performance of the defendant's official duties, does state a valid cause of action, and, as such, will survive the defendant's motions to dismiss and for judgment on the pleadings, even if the defendant raises the affirmative defense of qualified immunity." 555 So.2d at 86. "The summary judgment stage, then, becomes the step at which the court must determine whether the case should proceed forward, and at which the defendant must meet his burden of showing that the alleged negligence arose out of a discretionary or nonministerial act, in order to avail himself of qualified immunity from suit." Id. Because the complaint in this case alleges negligent conduct on the part of Bowers, and alternatively avers that Bowers acted "with malice" (proof of which state of mind would defeat the application of discretionary function immunity; see Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996)

), we cannot conclude that it is "beyond doubt that [Crowe] can prove no set of facts in support of [his] claim that would entitle [him] to relief." Nance, 622 So.2d at 299.

We now consider the issue of the City's liability. When viewed in a light most favorable to Crowe, to the extent that his complaint can be read as alleging a cause of action against the City, Crowe seeks to...