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Crowe v. City of Athens3/19/1999
drill planter was lawful or authorized, but intimates that the taking was improper as of January 1995. "If the holding or possession sounds in tort from the beginning, a demand and refusal are unnecessary for the purpose of determining when the statute of limitations begins to run. Where the statute has already begun to run, no subsequent demand and refusal can start it afresh." 89 C.J.S. Trover & Conversion § 91 (1955); see also 18 Am. Jur. 2d Conversion § 94 (1985).
Therefore, we conclude that the trial court correctly dismissed Crowe's complaint as to the City because Crowe's respondeat superior claim against the City was barred, as a matter of law, by the expiration of the two-year limitations period set forth in § 6-2-38(n), Ala. Code 1975. Because we reach this Conclusion, we do not address the City's alternate contention that the municipal non-claim statute, § 11-47-23, Ala. Code 1975, bars Crowe's claim against it. We also deny the City's motion to strike Crowe's brief or to dismiss Crowe's appeal, which is based upon Crowe's failure to notify the attorney general, pursuant to Rule 44, Ala.R.App.P., and § 6-6-227, Ala. Code 1975, of his constitutional challenge (since withdrawn) to § 11-47-190, Ala. Code 1975, the resolution of which challenge would not affect the outcome of this appeal.
Based upon the foregoing facts and authorities, the trial court's judgment is affirmed as to Crowe's claims against the City. As to Crowe's claims against Bowers, the judgment is reversed, and the cause remanded for further proceedings.
MOTION TO STRIKE OR DISMISS DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Yates, Monroe, Crawley, and Thompson, JJ., concur.
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