Phillips v. City of W. Palm Beach

• Decision Date: 08 January 2014
• Docket Number: No. 4D13–782.,4D13–782.
• Citation: 133 So.3d 1071
• Parties: Elroy A. PHILLIPS, Appellant, v. CITY OF WEST PALM BEACH, Appellee.
• Court: Florida District Court of Appeals

133 So.3d 1071

Elroy A. PHILLIPS, Appellant,

v.CITY OF WEST PALM BEACH, Appellee.

No. 4D13–782.

District Court of Appeal of Florida,

Fourth District.

Jan. 8, 2014.

Elroy A. Phillips, Miami, pro se.

Christopher Van Hall, City Attorney, and Kimberly Rothenburg, Assistant City Attorney, West Palm Beach, for appellee.

GERBER, J.

The plaintiff appeals from the circuit court's final order granting the city's motion to dismiss his fourth amended complaint with prejudice and denying his motion for leave to amend the fourth amended complaint. The plaintiff argues the court violated his due process rights by raising the statute of limitations as the basis for its order when the city never alleged a statute of limitations defense. The plaintiff also argues the court erred in denying his motion for leave to amend because the amendment could have cured the statute of limitations issue and thus would not have been futile. We agree with both arguments and reverse.

In September 2011, the plaintiff filed a complaint against the city's current and former police chiefs, several city police officers, and a DEA agent. In July 2012, the plaintiff filed his fourth amended complaint, which added the city as a defendant. For purposes of our review, we must accept the fourth amended complaint's allegations as true. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss ... [a] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.”) (internal quotations and citations omitted). The fourth amended complaint alleged the following:

15. On June 8, 2001, plaintiff was arrested by officers of the West Palm Beach Police Department. Upon his arrest, plaintiff's property was seized ... and ... subsequently turned over to [the DEA agent].

16. Beginning in 2005 plaintiff sued [the DEA agent] for the return of the property. In 2006 [the DEA agent] submitted a sworn affidavit to the U.S. District Court stating that he had given the disputed property to plaintiff's attorney. [The DEA agent] lied to the Court. [The DEA agent] never gave plaintiff's attorney the property.

17. ....

18. In 2006 plaintiff initiated another suit against [the DEA agent] for damages relating to the property. During litigation in September 2009, [the DEA agent and the city police officers] submitted sworn declarations along with documents stating that the disputed property was either donated or destroyed in February or May 2002.

19. The sworn declarations and documentation are perjurious statements and fabricated documents because the disputed property was in plaintiff's December 2–20, 2002 federal trial as potential evidence. So, it is impossible that the property was donated or destroyed in February or May 2002.

20. The defendants have committed wrongful, unauthorized acts or omissions which have permanently deprived the plaintiff of his property.

21. Plaintiff had a right of possession of the property.

22. The unlawful conversion of the property has been fraudulently concealed and the actions of the defendants were in bad faith or with willful or malicious purpose or in a manner exhibiting willful disregard of human rights, safety or property.

23. To the extent that the property was wrongfully converted, a conversion in law has transpired.

24. To the extent that the disputed property was donated or destroyed, the defendants are guilty of negligence ....

25. The City of West Palm Beach and the Chief and Ex–Chief(s) of the West Palm Beach Police Department are liable for the actions, inactions, errors and omissions of [i]ts employees.

The plaintiff's Count I alleged: “The defendants have permanently deprived the plaintiff of his personal property committing the tort of Conversion.” The plaintiff's Count II alleged: “To the extent that the property was destroyed or donated, the defendants are guilty of ... Negligence ....”

One of the officers filed a motion to dismiss the fourth amended complaint. The officer argued, among other things, that he was immune from suit and that the statute of limitations barred the plaintiff's claim.

The city then moved to dismiss the fourth amended complaint. The city argued that the plaintiff failed to state causes of action for conversion and negligence. The city did not argue that the statute of limitations barred the plaintiff's claims.

The circuit court granted the officer's motion to dismiss. The court also entered an agreed order dismissing the remaining individual defendants, thus leaving the city as the only defendant.

The plaintiff then filed a motion for leave to amend the fourth amended complaint as to the city. In the motion, the plaintiff sought to drop his conversion claim and supplement his negligence claim.

The circuit court later entered an order granting the city's motion to dismiss with prejudice and denying the plaintiff's motion for leave to amend. The circuit court's order states: “Plaintiff's causes of action are barred by the statue (sic) of limitations.” The circuit court reasoned, in pertinent part, as follows:

[I]n reviewing Plaintiff's own submissions, it is clear that that he first learned of the facts which would support his cause of action when the government responded to his July 1, 2005 Motion for Return of Property.... Additionally, in 2005 and 2006, Plaintiff filed complaints in federal court concerning the same property.... Plaintiff filed the present action on September 7, 2011, more than six (6) years after discovering facts giving rise to his cause of action and more than four (4) years after filing suit in federal court concerning the same property.

This reasoning is nearly identical to language contained in the court's order granting the officer's motion to dismiss on statute of limitations grounds.

The plaintiff filed a motion for reconsideration. In the motion, the plaintiff argued that the city had not alleged a statute of limitations defense. The plaintiff also argued that the statute of limitations did not bar his claim because he allegedly did not learn until September 2008 that the city's police department allegedly disposed of his property. The court denied the motion.

This appeal followed. The plaintiff raises two arguments. First, the plaintiff ar...