Koch v. Adams

• Decision Date: 18 March 2010
• Docket Number: No. 09–829.,09–829.
• Citation: 278 Ed. Law Rep. 1173,2010 Ark. 131,361 S.W.3d 817
• Parties: Anthony KOCH, Appellant, v. Nancy ADAMS and Danny Ebbs, Appellees.
• Court: Arkansas Supreme Court

2010 Ark. 131

278 Ed. Law Rep. 1173

361 S.W.3d 817

Anthony KOCH, Appellant,

v.Nancy ADAMS and Danny Ebbs, Appellees.

No. 09–829.

Supreme Court of Arkansas.

March 18, 2010.

Koch Law Firm, by: Reggie Koch, Little Rock, for appellant.

Mitchell, Blackstock, Barnes, Wagoner, Ivers & Sneddon, P.L.L.C., by: Clayton Blackstock, Little Rock, for appellee Nancy Adams.Bequette & Billingsley, P.A., by: Jay Bequette, Little Rock, for appellee Danny Ebbs.ROBERT L. BROWN, Justice.

Appellant Anthony Koch appeals the dismissal of his complaint by the Pulaski County Circuit Court relating to the seizure of his cell phone at school. We treat the motions to dismiss by the appellees, Nancy Adams and Danny Ebbs, as motions for summary judgment, and we affirm.

Koch was enrolled as a student at Sylvan Hills High School (“Sylvan Hills”) in the Pulaski County Special School District (“School District”) for the 2008–2009 school year. On September 4, 2008, Adams, a public-school teacher at Sylvan Hills, discovered that Koch had a cellular telephone in her classroom in violation of the School District's student handbook. Pursuant to the School District's disciplinary regulations, Adams confiscated the phone. According to Koch's complaint, he asked if he could remove the “SIM” card, which stores personal information, before turning over the phone. His request was denied. In accordance with School District policy, Adams delivered the phone with the SIM card installed to appellee Ebbs, Principal of Sylvan Hills, for storage. Koch and his parents then demanded the return of the phone, but it remained in possession of the School District for two weeks pursuant to the policy. Following the two-week period, neither Koch nor his parents requested to have the phone returned. On October 10, 2008, Ebbs sent the phone to Koch's father via certified mail.

On September 9, 2008, Koch filed a complaint against Adams in Pulaski County Circuit Court. He pled causes of action for conversion and trespass to chattels arising from Adams's alleged wrongful taking of Koch's property. On September 11, 2008, he amended his complaint to add Ebbs as a defendant. He also added a claim for unlawful taking of private property without due process of law. Compensatory and punitive damages were sought.

Adams answered the original complaint and the first amended complaint. Ebbs then filed an answer and moved to dismiss both complaints in a single pleading. In that pleading, he listed many “affirmative defenses,” including the failure to state a claim upon which relief could be granted under Arkansas Rule of Civil Procedure 12(b)(6). He also listed statutory and governmental immunity as affirmative defenses. Under a heading titled “Motion to Dismiss,” Ebbs moved to dismiss Koch's Complaint and First Amended Complaint due to failure to state facts upon which relief could be granted. Ebbs concurrently filed a brief in support of the motion to dismiss in which he urged that dismissal was required under Rule 12(b)(6) because Ebbs was immune from liability by statute. Adams then moved to dismiss and adopted Ebbs's motion and brief in support.

On February 10, 2009, Koch moved for injunctive relief and sought to prohibit the School District from seizing any student's personal property. That same day, Koch responded to the motions to dismiss and argued that Adams and Ebbs were subject to liability to the extent of any applicable insurance policy and that they failed to assert that there was no such policy. Koch also denied that the appellees were immune because the complaint alleged intentional torts.

On February 17, 2009, Ebbs replied to Koch's response to the motions to dismiss, wherein he conceded that he was not entitled to statutory immunity “to the extent [Koch's] Complaint and First Amended Complaint allege intentional torts.” Ebbs maintained, however, that the complaints were still subject to dismissal under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Three documents were attached to Ebbs's reply: “Exhibit A”—A copy of School District Rule 22, which prohibited possession of a cell phone at school and prescribed the sanctions for a violation, including confiscating the phone for two weeks; “Exhibit B”—the “Parent–Student Statement of Responsibility,” signed by the plaintiff and Reggie Koch; and “Exhibit C”—page 34 from the School District's Parent/Student Handbook for Student Conduct and Discipline, which set forth certain grievance procedures.

On February 24, 2009, the circuit judge held a hearing on the motions to dismiss and announced his intention to grant them. An order to that effect was entered on March 30, 2009.

On appeal, Koch first claims that the circuit judge erred in granting the motions to dismiss.¹ He asserts that “the plain language of Arkansas Code Annotated section 6–18–502 does not authorize school districts to promulgate a policy that allows teachers to seize and keep students' personal property” and that “the school district has other less restrictive means of reaching its lawful objectives.” Koch further contends that the circuit judge erred in holding that he was given due process before he was allowed (1) to engage in discovery, and (2) to produce evidence on what notice was given to him, what due process he deserved, and what due process was given or denied. Based on the same arguments, Koch contends that the circuit judge erred in denying his motion for injunctive relief.

As a preliminary matter, while the parties treat this as an appeal from an order granting a motion to dismiss, three exhibits, as already noted, were attached to Ebbs's reply to Koch's response to the motions to dismiss. The judge's order of dismissal reads that his findings were “[b]ased upon the pleadings, arguments of counsel, and other matters and things before the Court.” (Emphasis added.) It is well settled that when a circuit judge considers matters outside the pleadings, appellate courts will treat a motion to dismiss as one for summary judgment. See, e.g., Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. Because it is clear to this court that the circuit judge considered exhibits outside of the pleadings in making his ruling, the 12(b)(6) dismissal by the judge is converted to one for summary judgment. Id.

Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See., e.g., Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is not proper where the evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id.

The essence of Koch's argument appears to be that any “taking” by state actors requires a state law expressly authorizing such a taking and that due process must be provided. He maintains that because section 6–18–502 does not specifically authorize the School District to seize students' cell phones, the School District exceeded its authority in doing so. In his brief on appeal, however, Koch cites no direct authority for this statement but instead relies on the Fourth Amendment to the U.S. Constitution for the general proposition that “persons in our country, shall be secure in their persons and property, and the Constitution protects us from unreasonable search and seizure without due process of law.”

Koch also cites this court to various instances in which the Arkansas Constitution, state statutes, administrative regulations, or court rules authorize certain parties to seize property. The law he cites includes the following: Ark. Const. amend. 35 (creating the Arkansas Game and Fish Commission and granting broad authority to regulate wildlife); 002–00–001 Ark.Code R. § 01.00–B (Weil 2010) (granting authority to “make arrests, searches and seizures for violations of State game and fish laws and regulations.”); Ark.Code Ann. § 27–5–1201 et seq. (Repl.1994 & Supp.2009) (authorizing law enforcement to remove unattended or abandoned vehicles in certain instances); Ark.Code Ann. § 5–64–505 (Supp.2009) (authorizing the seizure of property law enforcement reasonably believes was used in the production or sale of illegal drugs); and Ark. R.Crim. P. Art. IV (2009) (general arrest provisions). None of the authority adduced by Koch is pertinent to this appeal; nor does it stand for the proposition he espouses that property cannot be seized without a specific law authorizing it.

As a result, we conclude that Koch's argument that the appellees' actions in seizing the cell phone were wrongful because no law specifically authorized that conduct is wholly conclusory. This court has repeatedly held that it will not consider an argument, even a constitutional one, if the appellant does not make a convincing argument or cite authority to support it. See, e.g., Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008). Accordingly, we will not consider this argument on the merits, and we affirm on this point.

Koch goes further and suggests that since section 6–18–502(c)(1) only expressly provides for suspension or dismissal as possible punishments for a cell-phone violation, the confiscation of personal property is not permitted. Koch also directs the court to other provisions in the Education Code that discuss potential punishments, such as Arkansas Code Annotated section 6–18–507,...