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Lankford v. City of Hendersonville

Court of Appeals of Tennessee, Nashville

March 29, 2018


          Assigned on Briefs October 2, 2017

          Appeal from the Circuit Court for Sumner County No. 2016-CV-211 Joe H. Thompson, Judge

         This case involves the seizure of the plaintiff's cellular telephone and other items of personal property by police officers employed by the defendant city during a criminal investigation in October 2012. The plaintiff pled guilty in August 2013 to one count of aggravated assault and three counts of simple assault before the criminal division of the Sumner County Circuit Court ("criminal court"). While subsequently incarcerated, the plaintiff initiated this action on March 2, 2016, by filing a motion requesting, inter alia, a "property hearing" in the civil division of the Sumner County Circuit Court ("trial court"), averring that his cellular telephone and other personal property had been illegally seized without notice and that his telephone had ultimately been destroyed by order of the criminal court. The plaintiff asserted that city police officers had violated his Fourth Amendment right to be free from unreasonable search and seizure. The trial court subsequently entered an order, inter alia, determining that the plaintiff's pleading was in substance a complaint alleging conversion. The city filed a motion to dismiss, asserting that it had governmental immunity from the plaintiff's constitutional and conversion claims. The city also asserted that any negligence claim was time-barred under the Tennessee Governmental Tort Liability Act ("GTLA"). See Tenn. Code Ann. § 29-20-305(b) (2012). Upon consideration of additional pleadings filed by the parties, the trial court dismissed the plaintiff's complaint, finding that the city possessed immunity from claims that its employees had violated the plaintiff's constitutional rights or committed conversion. The trial court further determined that any negligence claim against the city was time-barred by the applicable statute of limitations. The plaintiff has appealed. Discerning no reversible error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          John Pierce Lankford, Whiteville, Tennessee, Pro Se.

          John R. Bradley, Hendersonville, Tennessee, for the appellee, City of Hendersonville.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.



         I. Factual and Procedural Background

         The plaintiff, John Pierce Lankford, was arrested on October 12, 2012, by police officers employed by the defendant, the City of Hendersonville, Tennessee ("the City"). While conducting the investigation leading to Mr. Lankford's arrest, an officer or officers seized various items of Mr. Lankford's personal property, including his cellular telephone ("cell phone"). A plea agreement presented by the City as an exhibit to a pleading in the instant action reflects that Mr. Lankford entered a guilty plea in the criminal court on August 9, 2013, to one count of aggravated assault, see Tenn. Code Ann. § 39-13-102 (2014), and three counts of simple assault, see Tenn. Code Ann. § 39-13-101 (2014). At the time he initiated the instant action and throughout these proceedings, Mr. Lankford has been incarcerated.

         On March 2, 2016, Mr. Lankford, acting pro se, filed in the trial court a pleading entitled, "Motion to Appoint Counsel / Property hearing Sought." Naming as defendants the "State of Tennessee, Hendersonville Police Department, " Mr. Lankford averred that a City police officer had entered Mr. Lankford's home without a "search and seizure warrant" on October 12, 2012, and seized unspecified personal property. Mr. Lankford further averred that on the same day, a City police officer seized Mr. Lankford's cell phone, which purportedly had been lost the day before, when the phone was reported as lost and found to the City's police department. Mr. Lankford also alleged that his cell phone had been subsequently destroyed upon the City's petition to the district attorney's office and the criminal court's resultant order. Mr. Lankford stated a "fourth amendment and fourteenth amendment rights violation claim." He also requested that the trial court appoint counsel to represent him during his "property hearing."

         In an order entered March 7, 2016, the trial court found that Mr. Lankford's pleading in substance alleged a civil action for the tort of conversion and deemed it a complaint to be served upon the City and the State of Tennessee ("the State"). The court denied Mr. Lankford's motion for appointment of counsel, determining that Mr. Lankford did not possess a constitutional or statutory right to court-appointed counsel in a civil action. See Hessmer v. Miranda, 138 S.W.3d 241, 245 (Tenn. Ct. App. 2003) ("Indigent civil litigants, unlike indigent criminal defendants, possess neither a constitutional nor statutory right to court-appointed assistance."). Mr. Lankford subsequently filed a "Motion to Proceed" on April 21, 2016, denying that he had filed a governmental tort claim and reasserting his Fourth Amendment claim.

         On April 22, 2016, the City filed a motion to dismiss the complaint, positing that Mr. Lankford's claim alleged a tort action against the City and that as such, it was time-barred by operation of the GTLA, specifically the one-year statute of limitations provided in Tennessee Code Annotated § 29-20-305(b). Mr. Lankford initially responded by filing a pleading on April 25, 2016, in which he stated that he had filed this action pursuant to Tennessee Rules of Criminal Procedure 41(g)(1) and 12(b). The State filed a separate motion to dismiss on May 9, 2016, and Mr. Lankford filed various pleadings in response.

         The trial court entered an order on June 7, 2016, denying various motions filed by Mr. Lankford but granting Mr. Lankford additional time to submit a written response to the City's and the State's respective motions to dismiss. The court determined in this order that "the motions should be decided upon the pleadings and without a hearing." Mr. Lankford subsequently filed a motion for an extension of time and to "relieve the state as a defendant, " as well as an additional pleading clarifying that he wished to proceed with the City as the sole defendant. In an order entered July 11, 2016, the trial court treated Mr. Lankford's motion to relieve the State as a motion for voluntary nonsuit and dismissed Mr. Lankford's claim against the State without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01.[1] The court also granted Mr. Lankford's motion for an extension of time in which to file a written response to the City's motion to dismiss.

         On July 18, 2016, Mr. Lankford filed a "Motion to Dismiss" the City's motion to dismiss his complaint, arguing, inter alia, that the applicable statute of limitations had not begun to run at the time his personal property was seized because the City had not provided him with notice of seizure pursuant to Tennessee Code Annotated § 40-33-203(a). The City filed a response, reasserting its defenses under the GTLA and also arguing that because Mr. Lankford had agreed to the forfeiture of his personal property as part of his plea agreement, he had waived his right to contest the forfeiture. The City attached a copy of the plea agreement, signed personally by Mr. Lankford and his then-counsel on August 8, 2013, and approved in a criminal court judgment entered August 9, 2013. The plea agreement includes the following provision:

FORFEITURE OF SEIZED PROPERTY: I forfeit any and all interest in all property taken by any law enforcement agency. I agree such property is forfeited to the seizing agency.

         Mr. Lankford subsequently filed a motion objecting to the City's response.

         Upon the pleadings, the trial court entered a memorandum opinion and order on September 26, 2016, granting the City's motion to dismiss Mr. Lankford's complaint. The court found that Mr. Lankford's claims based on the Fourth and Fourteenth Amendments of the United States Constitution did not qualify as negligent acts or omissions of City employees for which the City's immunity from suit would be removed pursuant to the GTLA, specifically Tennessee Code Annotated § 29-20-205. The court also found that under the GTLA, the City could not be held vicariously liable for conversion as an intentional tort allegedly committed by a police officer or officers. Finally, the court found that Mr. Lankford could not maintain a negligence claim against the City because he failed to file such a claim within the one-year statute of limitations from the time his personal property was seized on October 12, 2012. See Tenn. Code Ann. § 29-20-305(b) (providing that an action under the GTLA "must be commenced within twelve (12) months after the cause of action arises.").

         Mr. Lankford filed a timely notice of appeal. However, he initially stated that he was appealing to the Tennessee Court of Criminal Appeals, and appellate proceedings began in that Court. Upon an order entered by the Court of Criminal Appeals on December 13, 2016, and Mr. Lankford's subsequent motion, the appeal was transferred to this Court by order entered December 19, 2016. In an order entered March 2, 2017, in response to Mr. Lankford's filing of a "Transcript of the Record" and the City's objection to the filing, the trial court struck Mr. Lankford's filing from the record upon finding that "it was not a transcript or statement of the evidence and should not be included in the record on appeal." As the City noted in its objection, no evidentiary hearing had been conducted in this case upon which a statement of the evidence or transcript could be based. See Tenn. R. App. P. 24(d). This appeal followed.

         II. Issue Presented

         Mr. Lankford presents one issue on appeal, which we have restated as follows:

Whether the trial court erred by dismissing Mr. Lankford's claim for improper seizure of property.

         III. Standard of Review

         In reviewing the trial court's dismissal of a complaint pursuant to Tennessee Rule of Civil Procedure 12, we must consider only the legal sufficiency of the complaint dismissed. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). As our Supreme Court has explained:

A Rule 12.02(6) motion to dismiss only seeks to determine whether the pleadings state a claim upon which relief can be granted. Such a motion challenges the legal sufficiency of the complaint, not the strength of the plaintiff's proof, and, therefore, matters outside the pleadings should not be considered in deciding whether to grant the motion. In reviewing a motion to dismiss, the appellate court must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences. It is well-settled that a complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief. Great specificity in the pleadings is ordinarily not required to survive a motion to dismiss; it is enough that the complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing Tenn. R. Civ. P. 8.01).

Id. (additional internal citations omitted). "A trial court's legal conclusions regarding the adequacy of a complaint are reviewed de novo without a presumption of correctness." Stewart v. Schofield, 368 ...

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