Morrow v. Town of Littleville

• Decision Date: 15 February 1991
• Citation: 576 So.2d 210
• Parties: 123 Lab.Cas. P 57,103 John MORROW v. TOWN OF LITTLEVILLE. 1900024.
• Court: Alabama Supreme Court

Page 210

576 So.2d 210

123 Lab.Cas. P 57,103

John MORROW v. TOWN OF LITTLEVILLE.

1900024.

Supreme Court of Alabama.

Feb. 15, 1991.

John R. Benn of Slusher & Benn, Florence, for appellant.

George W. Royer, Jr. of Sirote & Permutt, Huntsville, for appellee.

HOUSTON, Justice.

The plaintiff, John Morrow, appeals from a summary judgment for the defendant, the Town of Littleville, in this action seeking to recover damages under 42 U.S.C. § 1983 and for the breach of an employment contract. We reverse and remand.

The plaintiff's complaint, which was filed more than six months, but less than one year, after the occurrence of the incidents complained of, reads, in pertinent part, as follows:

"1. That on or prior to September 5, 1989, Plaintiff was employed as a dispatcher with the Town of Littleville.

"2. That on or about September 5, 1989, Plaintiff's employment with the Town of Littleville was terminated.

"3. That on or prior to September 5, 1989, the Town of Littleville had established a Policy and Procedures Manual....

"4. That the termination of Plaintiff's employment by the Town of Littleville was not permitted under the Policy and Procedures Manual for the Town of Littleville and did not follow appropriate policies for terminations.

"COUNT I

"5. Plaintiff realleges Paragraphs 1 through 4 of this Complaint.

"6. That the Town of Littleville breached [the] policies and procedures manual in terminating Plaintiff's employment for the reason so stated.

"7. As a proximate result and circumstance of the wrongful termination of Plaintiff's employment now Plaintiff has lost income and benefits to which he would otherwise be entitled.

"Wherefore, Plaintiff prays for a judgment against Defendant Town of Littleville as to this count of the Complaint in the sum of $15,000.00 plus interest and costs.

"COUNT II

"8. Plaintiff realleges Paragraphs 1 through 7 of this Complaint.

"9. That the Town of Littleville did deny Plaintiff due process of law pursuant to procedures for post-termination hearing which [was] held on or about October 14 through October 28, 1989. That during said proceeding, Plaintiff's rights to due process and a fair and impartial hearing were violated by conduct of B.T. Gardner, Jr., city attorney for the Town of Littleville [who] acted both as prosecutor and adjudicator in said action. Said conduct [on] the part of the city attorney was unlawful and thus violated Plaintiff's rights to due process hearing [before] a fair and impartial tribunal.

"10. That the action taken by the Defendant, Town of Littleville, was the result of custom and practice by the Defendant.

"11. As a proximate cause and consequence of the denial of Plaintiff's constitutionally protected rights, Plaintiff has been damaged.

"Wherefore, Plaintiff prays for a judgment as to this count against the Defendant in the sum of $10,000 plus interest and costs." ¹

The defendant moved for a summary judgment, arguing that the plaintiff had attempted to state a tort claim for the wrongful termination of an employment contract in count one ² and, therefore, that that count, as well as the § 1983 claim set out in count two, was barred by Ala.Code 1975, § 11-47-23, which provides:

"All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."

The defendant supported its motion with the affidavit of its town clerk, in which the clerk stated that the plaintiff had not presented any claims to her pertaining to the matters alleged in his complaint. The plaintiff argued that he had stated a claim for the breach of an employment contract in count one and, therefore, that he had satisfied the requirements of § 11-47-23 by filing his complaint within two years from the date his employment was terminated. See Marvin W. Sumlin Constr. Co. v. City of Prichard, 465 So.2d 371 (Ala.1985), where this Court held that the filing of a complaint seeking damages for the breach of a contract is a sufficient claim for payment to satisfy the requirements of § 11-47-23. The plaintiff also argued that § 11-47-23 was not applicable to his § 1983 claim. The trial court agreed with the defendant and entered a summary judgment in its favor, finding that it was entitled to a judgment as a matter of law.

Thus, the issues presented for our review are 1) whether count one of the plaintiff's complaint states a claim for the breach of an employment contract and 2) whether § 11-47-23 is applicable to a § 1983 claim brought in a state court against a municipality. For the following reasons, we hold that § 11-47-23 is not a bar to either of the plaintiff's claims.

Although we are called upon to review a summary judgment in this case, the standard of review applicable to the first issue, as presented, is the one applicable to motions to dismiss:

" 'It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala.R.Civ.P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed. Childs v. Mississippi Valley Title Insurance Co., 359 So.2d 1146 (Ala.1978).

" 'Where a 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).' "

Seals v. City of Columbia, 575 So.2d 1061 (Ala.1991), quoting Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985). (Emphasis in Fontenot.)

The plaintiff alleged in count one of his complaint that the defendant had a "Policy and Procedures Manual" and that the defendant had failed to follow the policies and procedures set out therein in terminating his employment. Construing the complaint liberally in favor of the plaintiff, as the applicable standard of review requires us to do, we must disagree with the defendant's contention that the trial court correctly characterized count one of the complaint as attempting to state a tort claim for the wrongful termination of an employment contract. Instead, we conclude that count one is sufficient to state a claim for the breach of an employment contract. This Court has held that an employee-at-will relationship can be modified by provisions in an employee handbook by which the employer promises not to discharge employees except by procedures or for causes set forth in the handbook " '[T]he language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract. The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.' "

Bell v. South Central Bell, 564 So.2d 46, 48 (Ala.1990), quoting Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 735 (Ala.1987). Consequently, because the plaintiff's complaint is sufficient to state a claim for the breach of an employment contract, the plaintiff satisfied the requirements of § 11-47-23 by filing his complaint within two years from the date his employment was terminated. Marvin W. Sumlin Constr. Co. v. City of Prichard, supra.

The defendant relies on Stewart v. City of Northport, 425 So.2d 1119 (Ala.1983), to support its argument that § 11-47-23 is a bar to the plaintiff's § 1983 claim. In Stewart, this Court held that § 11-47-23 was applicable to a § 1983 claim brought in a state court against a municipality. The Court stated, in part, as follows:

"We will address the six months' notice requirement first. It is well established that in a § 1983 action, the courts must look to state law for the applicable statute of limitations. Rubin v. O'Koren, 644 F.2d 1023 (5th Cir.1981). Since the defendant is a municipality, the applicable Alabama statute of limitations is § 11-47-23, Code 1975."

425 So.2d at 1121. The Court went on to distinguish § 11-47-23 from Georgia's ante-litem notice provision and to hold that there were no constitutional barriers, such as the exhaustion of administrative remedies, to the plaintiffs' filing of their § 1983 action. The Court specifically held that Ehlers v. City of Decatur, Georgia, 614 F.2d 54 (5th Cir.1980), did not control that case. ³

Relying on Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985); and Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir.1989), the plaintiff argues that the only statute of limitations now applicable to a § 1983 claim filed in a court in Alabama, whether that court is a state court or a federal court, is the two-year statute of limitations set out in Ala.Code...