Assigned on Briefs October 2, 2017
from the Circuit Court for Sumner County No. 2016-CV-211 Joe
H. Thompson, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Pierce Lankford, Whiteville, Tennessee, Pro Se.
R. Bradley, Hendersonville, Tennessee, for the appellee, City
R. Frierson, II, J., delivered the opinion of the court, in
which Richard H. Dinkins, J., and J. Steven Stafford, P.J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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.
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."
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.
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.
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. 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.
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.
Lankford subsequently filed a motion objecting to the
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.").
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.
Lankford presents one issue on appeal, which we have restated
Whether the trial court erred by dismissing Mr.
Lankford's claim for improper seizure of property.
Standard of Review
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.
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 ...