Al-Hakim v. Holder
| Decision Date | 01 June 2001 |
| Docket Number | No. 2D00-2482.,2D00-2482. |
| Citation | 787 So.2d 939 |
| Parties | Marzuk AL-HAKIM, Appellant, v. Bennie R. HOLDER, as Chief of the Tampa Police Department, and Kirby Rainsberger, acting on behalf of the Forfeiture Unit of the Tampa Police Department, Appellees. |
| Court | Florida District Court of Appeals |
Marzuk Al-Hakim, pro se.
James D. Palermo, City Attorney, and Nancy B. Silva, Assistant City Attorney, Tampa, for Appellees.
Marzuk Al-Hakim appeals from an order dismissing with prejudice his petition for replevin. In considering the motion to dismiss filed in response to the petition, the circuit court looked beyond the allegations of the petition. Also, Al-Hakim did not have an opportunity to amend the petition to try to correct the deficiencies. For these reasons, we reverse.
Al-Hakim, acting pro se, filed suit seeking possession of a 1983 Cadillac.1 He alleged that the car had been illegally impounded by Bennie R. Holder, as chief of police of the city of Tampa, and by Kirby Rainsberger, acting on behalf of the forfeiture unit of the Tampa Police Department. Al-Hakim claimed ownership of the car pursuant to a bill of sale but acknowledged that his name was not on the car's title.
A motion to dismiss was filed on behalf of Chief Holder and Mr. Rainsberger. The motion alleged that: the circuit court lacked subject matter jurisdiction; Al Hakim lacked standing as a result of his failure to attach documents in support of the claim; the car was subject to a towing and storage lien held by the city of Tampa; and Mr. Rainsberger was not served with process.
We note that on its face, the petition was deficient. It did not contain the requisite allegations in order to state a claim for replevin under section 78.055, Florida Statutes (1999). Al-Hakim failed to allege the value of the car, that the car was not taken for a tax, assessment, or fine, and that the car was not taken under execution or attachment or that it was exempt from execution or attachment. Moreover, he did not attach a bill of sale or any other document in support of his claim.
At a hearing on the motion to dismiss, the circuit judge was provided with information concerning the merits of the claim. Subsequently, the judge conducted an evidentiary hearing on the motion, addressing the allegations of the petition and the merits of Al-Hakim's claim to possession or ownership. During the evidentiary hearing, Al-Hakim asked that he be allowed to amend the petition to cure the deficiencies.
At the conclusion of the hearing, the judge orally stated that Al-Hakim could refile the claim in the county court and that the case was dismissed with prejudice. The written order of dismissal specified that the dismissal was with prejudice. It contained a finding that there was insufficient evidence in the complaint or otherwise presented to the court which would prove Al-Hakim's possessory or ownership interest in the car. The order also noted that the value of the car was insufficient to invoke circuit court jurisdiction.
The de novo standard of review is applied when considering an order granting a motion to dismiss. Randles v. Moore, 780 So.2d 158, 159 (Fla. 2d DCA 2001). We note that the Florida Rules of Civil Procedure apply to a replevin action. Traces Fashion Group, Inc. v. C & C Mgmt., Inc., 763 So.2d 502, 503 (Fla. 3d DCA 2000).
It is evident that the circuit court was attempting to get this matter resolved expeditiously and on the merits; however, the procedures which were applied were faulty. A motion to dismiss is not a substitute for a motion for summary judgment. Roberts v. Children's Med. Serv., 751 So.2d 672, 673 (Fla. 2d DCA 2000); Baycon Indus., Inc. v. Shea, 714 So.2d 1094, 1095 (Fla. 2d DCA 1998). Furthermore, a motion to dismiss does not permit the trial court to consider extrinsic evidence as to who had superior possessory rights to the property in question. Holland v. Anheuser Busch, Inc., 643 So.2d 621, 623 (Fla. 2d DCA 1994).
When considering a motion to dismiss, the trial court is limited to consideration of the allegations contained within the four corners of the complaint. Roberts, 751 So.2d at 673. The motion does not provide authority to the trial...
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