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Crowe v. City of Athens3/19/1999
REL: 03/19/1999 CROWE
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Randy Crowe appeals from a judgment of the Limestone County Circuit Court dismissing his claims against Mignon Bowers and the City of Athens ("the City") arising from the alleged detention of a grain drill planter. We reverse the judgment as to Bowers, but affirm the judgment as to the City.
On December 1, 1997, Crowe filed a complaint that stated, in pertinent part:
"1. During or about January, 1995, defendant Mignon Bowers while acting within the scope of her employment as a municipal officer of the defendant City of Athens, Alabama, with the aid of unknown defendants, did negligently order, cause, permit or fail to prevent the wrongful conversion and appropriation of a John Deere grain drill planter from the possession of the plaintiff to the possession and to the benefit of the defendant City of Athens, Alabama, by wrongfully taking the said John Deere grain drill planter and carrying it away.
"....
"2. Written demand for the return of the John Deere grain drill planter to his possession having been made by the plaintiff, on or about the 17th day of July, 1997, and continuing to the present day defendant Mignon Bowers and other unknown defendants acting within the scope of their employment by the defendant City of Athens, Alabama, have wrongfully exercised dominion over the said John Deere grain drill planter in known violation of the law to the exclusion of and in defiance of the plaintiff's rights with insult, contumely and malice.
"....
"3. The notice requirements to defendant City of Athens, Alabama, a municipal corporation, of Code of Alabama, 1975, Sections 11-47-23 and 11-47-192 have been fully complied with prior to the filing of this Complaint."
The City and Bowers filed a motion to dismiss, alleging, among other things, (1) that Crowe's complaint failed to state a claim upon which relief could be granted; (2) that Crowe had failed to file a proper notice of claim with respect to his claim against the City; (3) that the defendants were immune from liability; and (4) that Crowe's claims were time-barred. Crowe filed a response in opposition, attaching a copy of a "notice of claim" filed with the City on July 17, 1997, and a photograph of the allegedly detained property; thereafter, both parties filed legal arguments in support of their positions. After a hearing, the trial court granted the defendants' motion and entered a judgment dismissing the case.
Crowe appealed to the Alabama Supreme Court. That court transferred the appeal to this court, pursuant to ยง 12-2-7(6), Ala. Code 1975.
We must first consider the proper standard of review with respect to the trial court's judgment, an issue the parties have not addressed. Rule 12(b), Ala.R.Civ.P., provides that " f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In this case, Crowe submitted a copy of his notice of claim and a photograph of the al
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