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Toney v. City of Anchorage Police Dept. (12/19/97), 950 P 2d 123
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WILTON TONEY, )
) Supreme Court No. S-7572
) Superior Court No.
v. ) 3AN-95-5067 CI
CITY OF ANCHORAGE POLICE ) O P I N I O N
DEPARTMENT and THREE JOHN DOE )
Appellees. ) [No. 4919 - December 19, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Dana Fabe, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellant. Stephanie
Galbraith Moore, Assistant Municipal Attorney, and Mary K. Hughes,
Municipal Attorney, Anchorage, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe, Justice, not participating.]
Wilton Toney appeals from an order dismissing his
complaint for failure to state a claim upon which relief can be
granted. This order was based on Toney's failure to file the
complaint within the applicable period of limitation. We affirm in
part and reverse in part.
II. FACTS AND PROCEEDINGS
On September 14, 1988, Wilton Toney was arrested and
charged with drug trafficking. On September 14 and 15 officers of
either the Anchorage Police Department (APD), the Alaska State
Troopers (AST), or both, executed search warrants and seized
certain items of Toney's property. At some later point, this
property was turned over to the federal Drug Enforcement Agency
(DEA). Toney claims to have been notified of this fact on July 7,
1989. It appears that no forfeiture proceeding was held prior to
turning the property over to the DEA.
On June 19, 1995, Toney, acting pro se, filed a complaint
for conversion of the seized property. Named as defendants were
APD, AST, and three John Doe employees of each. AST filed an
Alaska Civil Rule 12(b)(6) motion to dismiss for failure to state
a claim, based on the expiration of the applicable period of
limitation. APD filed a similar motion. The superior court
dismissed Toney's complaint for failure to state a claim upon which
relief can be granted, based upon a statute of limitation. [Fn. 1]
Toney filed a motion to reconsider this dismissal, which was
denied. This appeal followed. A consensual dismissal has since
been entered as to AST and its employees. APD and three John Doe
employees of APD remain parties to this appeal.
III. STANDARD OF REVIEW
This court reviews de novo an order dismissing a
complaint for failure to state a claim. See Kollodge v. State of
Alaska, 757 P.2d 1024 (Alaska 1988). To survive a Rule 12(b)(6)
"it is enough that the complaint set forth
allegations of fact consistent with and appropriate to some
enforceable cause of action." The trial court must only consider
the material contained in the pleadings . . . . The court "must
presume all factual allegations of the complaint to be true and
[make] all reasonable inferences . . . in favor of the non-moving
party." Motions to dismiss are viewed with disfavor and should
rarely be granted.
Id. at 1025-26 (alterations in original) (citations omitted).
The issue contested by the parties is whether there is a
set of facts, provable within the framework of the complaint, under
which the complaint was timely filed. To answer this question, we
must first determine which statute of limitation applies to Toney's
claim against APD and which statute of limitation applies to his
claim against the three John Doe officers.
A. Which Statute of Limitation Applies to Toney's Claim against APD?
The parties discuss three possible statutes:
(1) AS 09.10.050(3) sets forth a six-year period of
limitation for "taking, detaining, or injuring personal property."
(2) AS 09.10.070(a)(2) sets forth a two-year period of
limitation in the following language: "A person may not bring an
action . . . (2) upon a statute for a forfeiture or penalty to the
(3) AS 09.10.060(b) sets forth a three-year period of
limitation in the following language: "A person may not bring an
action upon a statute for penalty or forfeiture where the action is
given to the party aggrieved or to that party and the state unless
the action is brought within three years, except where the statute
imposing it prescribes a different limitation."
Alaska Statute 09.10.050(3) governs actions for
conversion. The six-year statute of limitation found in
AS 09.10.050(3) will apply to Toney's claims unless another, more
specific statute also applies. APD suggests that one of the
forfeiture-related statutes of limitation should apply, reasoning
thus: Toney alleges that the state transferred his property to the
DEA prior to a required forfeiture proceeding under AS 17.30.116.
Therefore Toney's action is one for non-feasance (by the state)
"upon a statute for a forfeiture."
We disagree. Both AS 09.10.060(b) and AS 09.10.070(a)(2)
use the language "an action upon a statute." This language appears
to require that the statute at least implicitly, if not explicitly,
provide the cause of action. Toney's action is not provided by
statute; it is an action for conversion, a creature of common law.
If APD had followed the forfeiture procedures contained in
AS 17.30.116, then it would have a defense to Toney's conversion
claim. But this does not mean that AS 17.30.116 provides the claim
Though APD's arguments do not persuade us, neither are
they wholly meritless. Rather, they highlight an ambiguity present
in both AS 09.10.060(b) and AS 09.10.070(a)(2). However, to the
extent that a statute of limitation is ambiguous, we have held that
it will be resolved in favor of permitting an action. See Safeco
Ins. Co. of Am. v. Honeywell, 639 P.2d 996, 1001 (Alaska 1981)
("Where two constructions as to the limitations period are
possible, the courts prefer the one which gives the longer period
in which to prosecute the action."). We therefore conclude that
AS 09.10.060(b) and AS 09.10.070(a)(2) are inapplicable to Toney's
claims. We hold that the six-year period of limitation contained
in AS 09.10.050 applies to Toney's claims against APD.
The next question is whether there is a set of facts,
provable within the framework of the complaint, under which Toney's
action against APD was filed within the applicable six-year period.
That the initial seizure was lawful (in execution of a warrant) is
consistent with the complaint; that the transfer of the property to
the DEA was the tortious act (conversion) is consistent with the
complaint; that the transfer took place at some point after
June 19, 1989 is consistent with the complaint. On this set of
facts, the complaint, filed June 19, 1995, would be within a six-
year period of limitation. [Fn. 2]
B. Which Statute of Limitation Applies to Toney's Claim
against the Three John Doe Officers of APD?
With respect to the three John Doe Officers of APD, a
fourth statute of limitation may apply: Former AS 09.10.060(a) was
in effect at the time this action began. It set forth a three-year
period of limitation for actions against individual peace officers
for acts performed in their official capacity.
On appeal, Toney argues that whether the officers were
acting in their official capacity is a question of fact that we
must resolve in his favor. We conclude, however, that in his
motion to reconsider, Toney conceded that the officers were, in
fact, acting in their official capacity. Though the parties
present no Alaska cases on this point, a number of other courts
have held that when a party concedes a fact before the trial court,
the party may not later contest it. See, e.g., Bush v. Wilson &
Co., 138 P.2d 457, 462 (Kan. 1943); Brookfield Co. v. Mart, 10 P.2d
594, 595 (Or. 1931); Quincy Valley State Bank v. Schneider, 219
P.2d 985, 985-86 (Wash. 1950). We find this position persuasive.
Having conceded before the trial court that the John Doe officers
were acting in their official capacity, Toney may not suggest that
this is still a triable issue of fact. We hold that the three-year
period of limitation in former AS 09.10.060(a) applies to Toney's
claims against the John Doe officers. There is no set of facts
provable within the framework of Toney's complaint under which that
complaint could have been filed within the three-year period.
We REVERSE the dismissal of Toney's complaint against APD
and REMAND for further proceedings consistent with this opinion.
We AFFIRM the dismissal of Toney's complaint against the
John Doe officers.
The court's order does not make clear which statute of
limitation it deemed applicable.
For purposes of this appeal, it does not matter whether the
statute of limitation began to run when APD transferred the
property or when Toney was notified of that transfer. Evidence may
show that both of these events occurred after June 19, 1989. We
therefore do not consider this issue.