Laramore v. Jacobsen
| Decision Date | 17 November 2020 |
| Docket Number | No. ED 108855,ED 108855 |
| Citation | 613 S.W.3d 466 |
| Parties | Dennis L. LARAMORE, Appellant, v. Zachary JACOBSEN, William Gleeson, Doug Tuning, Mike Gum, and Andy Skiles, Respondents. |
| Court | Missouri Court of Appeals |
Dennnis L. Laramore, Pro Se, #508408, Southeast Correctional Cen, 300 East Pedro Simmons Drive, Charleston, Mo. 63834, for appellant.
Joshua E. Hedgecorth, 102 N. Missouri, Potosi, MO. 63664, for respondent.
The plaintiff, Dennis Laramore, appeals pro se the judgment entered by the Circuit Court of Washington County dismissing his petition for replevin against the defendants, law enforcement officers Zachary Jacobsen, William Gleeson, Andy Skiles, Doug Tuning, and Mike Gum. The circuit court dismissed Laramore's petition because it determined that the three-year statute of limitations set forth in section 516.130(1) RSMo. (2016)1 applied, and that the limitations period expired before Laramore filed this action.
The circuit court correctly determined that section 516.130(1) sets forth the applicable statute of limitations. However, the trial court erred in ruling that the three-year statute of limitations began to run on the date that law enforcement officers seized the property at issue. Rather, the statute of limitation begins to run when law enforcement or the court determines that the property is no longer needed as evidence. Because we cannot determine from the face of the petition—or indeed from anything in the record—if or when the court or law enforcement determined that the disputed property was no longer needed as evidence, we reverse and remand.
On January 7, 2015, officers with the Washington County Sheriff's Office and the Potosi Police Department executed a search warrant at an apartment and two storage units in Potosi, Missouri. The defendants are officers who participated in that search. The defendants seized from the plaintiff cash, firearms, ammunition, electronics, tools, coins, toys and figurines, other collectibles, and other items identified in the search warrant and alleged to have been stolen. The plaintiff claims the seized property belongs to him, and his replevin action seeks its return.
The defendants contend in their brief that Laramore was charged and convicted in Washington County with eight counts of unlawful possession of a firearm, and was sentenced to 20 years of imprisonment. They state that this Court denied Laramore relief on direct appeal of his criminal conviction in Washington County, but that appeal of the denial of his motion for post-conviction relief remains pending. The defendants also maintain that Laramore is awaiting trial in Crawford County on charges related to the seized property.
The instant petition is Laramore's third attempt at replevin in this matter. Laramore filed his first petition for replevin on August 14, 2017. The circuit court dismissed that petition without prejudice in March 2018 for failure to appear. Laramore filed his second petition for replevin on December 26, 2018. The court dismissed the second petition without prejudice in March 2019 for failure to prosecute.
Laramore then filed the current petition for replevin on September 3, 2019. The petition alleges in pertinent part:
The remainder of the allegations in the petition do not relate to the facts of the case, but rather concern access to the courts and Laramore's request to be present for all court proceedings.
The defendants filed their answer, and moved to dismiss the petition on the sole ground that the statute of limitations expired January 7, 2018, three years after the date the property was seized on January 7, 2015. Laramore countered that "all time prior to May 22nd, 2019 must be tolled" because " ‘[t]ime did not begin to run until the damage was sustained and capable of ascertainment, which did [not] begin until the police indicated the property was no longer needed as evidence[.]’ "2 Relying on section 516.130(1), the circuit court dismissed the petition with prejudice on December 19, 2019 because the petition had been filed more than three years after the seizure of the property on January 7, 2015. The circuit court later filed an amended judgment, simply denoting the original order as a "judgment" and rendering it a final, appealable judgment. Laramore appeals.
In two points on appeal, the plaintiff challenges the circuit court's dismissal of his petition for replevin.
We review de novo the circuit court's grant of a motion to dismiss. A.F. v. Hazelwood School Dist. , 491 S.W.3d 628, 631 (Mo. App. E.D. 2016). We construe the petition liberally, viewing all alleged facts as true and in a light most favorable to the petitioner. Elam v. Dawson , 156 S.W.3d 807, 808 (Mo. App. W.D. 2005) ; Hamdan v. Bd. of Police Comm'rs , 37 S.W.3d 397, 399 (Mo. App. E.D. 2001). We review only the grounds for dismissal raised in the motion, and we will affirm if dismissal was appropriate on any ground supported by the motion. A.F. , 491 S.W.3d at 631.
A defense that the statute of limitations has expired is an affirmative defense that must be pleaded. Rule 55.08. When the statute of limitations is raised as an affirmative defense, the circuit court may dismiss the petition only if the face of the petition clearly and without exception establishes that the cause of action is time barred. City of Ellisville v. Lohman , 972 S.W.2d 527, 530 (Mo. App. E.D. 1998). The circuit court properly grants a motion to dismiss based on an affirmative defense when the petition irrefutably establishes the defense. Elam , 156 S.W.3d at 808 ; Lohman , 972 S.W.2d at 530.
The circuit court concluded that the three-year statute of limitations in section 516.130(1) expired before the plaintiff filed this action, his third petition for replevin, and that the plaintiff had exhausted his one opportunity to use the savings statute under section 516.230.3
The plaintiff's second point is dispositive. The plaintiff claims the circuit court applied the wrong statute of limitations to determine that his action is time barred, and thus erred in dismissing his petition for replevin. The plaintiff contends that the controlling statute is section 516.120(4), rather than section 516.130(1) relied on by the circuit court.
Section 516.120(4) imposes a five-year statute of limitations for "[a]n action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated[.]" However, section 516.130(1) relied on by the circuit court, imposes a three-year statute of limitations in "[a]n action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise[.]" The circuit court ruled that section 516.130(1) applied because the defendants in this case are all law enforcement officers acting in their official capacity.
The first question we must decide is which statute of limitations applies: section 516.120(4), the general replevin statute, or section 516.130(1), the statute providing for actions against officers. When interpreting statutes, courts must seek to ascertain the intent of the legislature from the language of the statute, and if possible, give effect to that intent. Lohman , 972 S.W.2d at 534. We determine the legislature's intent by considering the plain and ordinary meaning of the terms in the statute. Id. Each word, clause, sentence, and section of a statute should be given meaning whenever possible. Id. In addition, when two separate statutes deal with the same subject matter, we must read the two statutes together, harmonize them, and give effect to the provisions of each. Id. We apply the provisions of a more specific statute instead of the provisions of a more general one. Id.
The plain language of Section 516.120(4) renders it a general statute because it applies to "[a]n action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property." Section 516.130(1) is the more specific statute of the two because it applies to an action against "a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office."
For section 516.130(1) to apply, the defendants must qualify as "other officers." In State ex rel. School District of Sedalia v. Harter, the Missouri Supreme Court first addressed the meaning of the phrase "or other officer" in the context of what is now section 516.130(1) :
A public office is defined to be the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual who is invested with the authority and is required to perform the duties is a public officer.
188 Mo. 516, 87 S.W. 941, 943 (1905). All of the defendants here are local law enforcement officers. As such, they perform "some portion of the sovereign functions of the government, to be exercised by [them] for the benefit of the public." Dilley v. Valentine , 401 S.W.3d 544, 552 (Mo. App. W.D. 2013). The...
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