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McDonald v. Keahey

Alabama Court of Civil Appeals

August 23, 2019

Dorothy McDonald
Robert Keahey and Foster Wrecker Service, Inc.

          Appeal from Jefferson Circuit Court (CV-17-901042)

          HANSON, JUDGE.

         Dorothy McDonald appeals from a judgment entered against her, and in favor of Robert Keahey and Foster Wrecker Service, Inc. ("Foster"), by the Jefferson Circuit Court ("the trial court"). For the following reasons, we affirm in part, reverse in part, and remand.

         Facts and Procedural History

         The basic facts of this case are undisputed. In late 2016, McDonald, a resident of the City of Center Point ("Center Point"), had two inoperable vehicles parked in the driveway of her home.[1] McDonald's driveway runs alongside the front lawn of the home, and dips down below the front elevation of the house to a parking area next to the home. Both vehicles were parked at the bottom of McDonald's driveway and next to her house. The driveway was not fenced or gated, but the area where the vehicles were located was bounded on two sides by the home and a retaining wall.[2]

         On November 9, 2016, Keith Evans, the code-enforcement manager for Center Point, entered McDonald's property to inspect the vehicles, which he claimed he had seen on a previous patrol, and to determine whether they violated Center Point municipal ordinance § 44-66.[3] That ordinance prohibits a property owner from parking "junked, abandoned or nonoperational motor vehicles" on private property if they are readily visible from a public place or surrounding private property. The ordinance provides, in part:

"No person in charge of or in control of any premises, whether as owner, lessee, tenant, occupant, or otherwise shall allow any partially dismantled, wrecked, junked, discarded or otherwise non-operable motor vehicles, of any kind or type, to remain on such property longer than seven days after being cited by a city official or his designated representative and the responsible person notified to act in such a way as to solve the problem to the satisfaction of the governing authorities."

         The ordinance defines "nonoperable" as "being unable to be legally operated on public streets and roadways, such as having flat tires, jacked up or resting on stands, boxes, barrels, with pieces and/or parts missing, including expired license tag and/or decals."

         Although McDonald was not at home at the time of Evans's inspection, her ex-husband, Byron Steele, was present. Steele ordered Evans to leave the property. Evans then called Keahey, a Jefferson County sheriff's deputy assigned to the Center Point area, and reported that Steele was interfering with his attempt to inspect the vehicles. Keahey traveled to McDonald's home and met with Steele.[4] Ultimately, Evans completed the inspection of the vehicles and issued a "notice of violation(s) and order to correct violation(s)," which notice he left at McDonald's home.[5] The notice described the violation and stated that the vehicles were to be "removed immediately." The notice further provided that "[i]f you fail to correct this violation, [Center Point] may elect to correct the violation itself."

         On December 2, 2016, Keahey returned to McDonald's house. Upon finding that the two inoperable vehicles remained in McDonald's driveway, he telephoned Foster, a towing company under contract to provide towing services to Center Point, and requested that that company remove the vehicles. Foster towed the vehicles to its facility. Keahey provided McDonald with a card containing Foster's contact information and instructed her to contact Foster regarding her vehicles. After Foster determined that the redemption date for McDonald to reclaim the vehicles had expired, it sold the vehicles.

         On March 14, 2017, McDonald commenced this action against Center Point, Foster, and Keahey ("the defendants").[6]McDonald asserted various state-law tort claims against the defendants, including claims of conversion, negligence, and detinue. Further, she sought injunctive relief prohibiting the sale or disposal of one of the vehicles, which vehicle, she alleged, was still in Foster's possession. Finally, she asserted a count under the provisions of § 32-13-4, Ala. Code 1975, contesting the sale of her vehicles. In addition to injunctive relief, McDonald sought an award of compensatory damages in the amount of $100, 000 and an award of punitive damages in the amount of $300, 000.

         Each of the defendants separately moved to dismiss McDonald's claims. Keahey argued that, because he was a deputy sheriff, all the claims against him were due to be dismissed under the doctrine of State-agent immunity. Center Point moved to dismiss the claims against it on the basis that the claims for injunctive relief were moot or, alternatively, did not comply with Rule 65, Ala. R. Civ. P.; that it was immune from liability for intentional torts; that it could not be liable for the acts of Keahey or Foster; that § 32-13-4 was not applicable; and that, because it did not have possession of the vehicles, detinue was not a legally cognizable claim against it. Foster filed a motion to dismiss arguing that it had no liability to McDonald because it had been merely acting on the instruction of Keahey pursuant to its agreement with Center Point and because, it claimed, it had complied with all applicable notice requirements with regard to the towing and sale of the vehicles.

         On September 15, 2017, McDonald filed her first amended complaint, adding two civil-rights claims against the defendants pursuant to 42 U.S.C. § 1983. McDonald alleged that the defendants, while acting under color of state law, had violated her rights under the Fourth and Fourteenth Amendments to the United States Constitution. Keahey and Foster moved to dismiss the amended complaint, contending that they were protected from the § 1983 claims by the doctrine of qualified immunity. Foster also claimed it was entitled to absolute quasi-judicial immunity. Center Point contended that the claims against it were due to be dismissed because McDonald could not establish a claim of municipal liability under § 1983. McDonald subsequently filed a second amended complaint that added a trespass claim against the defendants.

         On October 16, 2017, the trial court issued orders dismissing all the claims asserted against the defendants in McDonald's original complaint. On April 16, 2018, the trial court issued an order dismissing all of McDonald's remaining state-law claims against Keahey and Foster but denying Keahey's and Foster's motions to dismiss the § 1983 claims. As to those claims, the trial court determined that additional discovery was necessary, and it ordered that the parties would be permitted to conduct limited discovery "narrowly tailored to addressing the question of when notice was issued to [McDonald] regarding the automobiles made the subject of this case." Also on April 16, 2018, the trial court dismissed all pending claims against Center Point, and it amended that order on April 19, 2018, to certify the judgment in favor of Center Point as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

         On July 20, 2018, Keahey and Foster each filed separate summary-judgment motions directed to the § 1983 claims. Both of those defendants contended that McDonald's claims were barred by the doctrine of qualified immunity and that McDonald had not established any constitutional violations sufficient to support her § 1983 claims. The motions were supported by affidavits and other attached evidentiary submissions. McDonald responded to the summary-judgment motions, likewise submitting affidavits and other documentary evidence in opposition to the motions. On October 17, 2018, the trial court granted Keahey's and Foster's summary-judgment motions and entered a final judgment disposing of all of McDonald's claims. McDonald appealed the judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. This court dismissed the appeal as it pertained to the judgment entered in favor of Center Point because the appeal of that judgment was undisputedly untimely.[7]

         Standard of Review

         In her principal brief, McDonald challenges only the propriety of the summary judgment as it relates to the § 1983 claims against Keahey and Foster; she does not discuss the dismissals of the state-law claims or controvert any of the various theories Foster and Keahey had asserted in support of their contention that the state-law claims against them were due to be dismissed. Consequently, any argument that the trial court erred in dismissing the state-law claims has been waived on appeal. Surginer v. Roberts, 231 So.3d 1117, 1127 (Ala. Civ. App. 2017) (quoting Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005)) ("'[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.'"); Soutullo v. Mobile Cty., 58 So.3d 733, 739 (Ala. 2010) ("[T]he failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment[] results in an affirmance of that judgment.").[8] Therefore, our review in this case is limited to the correctness of the summary judgment in favor of Keheay and Foster on McDonald's § 1983 claims.

"'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala. 1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala. 1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
"'An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992), Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).'"

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000)). Furthermore, an appellate court will "'review the validity of a qualified immunity defense de novo.'" Ex parte Hugine, 256 So.3d 30, 45 (Ala. 2017) (quoting Volkman v. Ryker, 736 F.3d 1084, 1089 (7th Cir. 2013), citing in turn Elder v. Holloway, 510 U.S. 510, 516 (1994)).[9]


         In order to be entitled to relief under § 1983, McDonald must demonstrate that the actions of Keahey and Foster (1) occurred "under color of state law" and (2) resulted in the deprivation of a constitutional or federal statutory right. In this case, McDonald asserts that Keahey and Foster were acting under the color of state law when they removed her vehicles from her driveway and that the seizure and sale of her vehicles constituted an unreasonable seizure[10] in violation of the Fourth Amendment and also violated her due-process rights guaranteed by the Fourteenth Amendment.[11] Keahey and Foster deny that McDonald was deprived of any constitutional right and further contend that they are immune from McDonald's § 1983 claims. We discuss each issue, in turn.

         "Under Color of State Law"

         As to the color-of-state-law prong, we may safely conclude that Keahey -- a deputy sheriff assigned to provide law-enforcement services to Center Point -- was unquestionably operating under color of state law. Foster, on the other hand, is a private towing company. Nevertheless, McDonald has alleged that Foster was acting under color of state law.

         Actions of an ostensibly private organization or individual are, under certain circumstances, treated as state action. The United States Supreme Court has stated that "state action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). In order to prove that a private party working for the government is a state actor, a plaintiff must demonstrate "pervasive entwinement" between the two entities surpassing that of a mere contractual relationship. McCarthy v. Middle Tennessee Elec. Membership Corp., 466 F.3d 399, 412 (6th Cir. 2006) (noting that "the existence of a contract alone does not rise to the level of 'pervasive entwinement'"). The question of "pervasive entwinement" is a "'necessarily fact-bound inquiry.'" Brentwood Acad., 531 U.S. at 298 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).

         We recognize that there are opinions from various federal courts holding that a private towing company does not act under color of state law. See, e.g., Partin v. Davis, 675 Fed.Appx. 575, 586-87 (6th Cir. 2017) (not reported in Federal Reporter); Carmen Auto Sales III, Inc. v. City of Detroit, No. 16-12980, March 15, 2018 (E.D. Mich. 2018)(not reported in Federal Supplement); but see Smith v. Insley's Inc., 499 F.3d 875, 880 (8th Cir. 2007). Foster, however, has at no time asserted that it is not a state actor, [12] and, although this court may affirm a summary judgment for any legitimate reason supported by the record, Evans v. Waldrop, 220 So.3d 1066, 1073 (Ala. Civ. App. 2016), the facts as contained in the record on appeal in this case are not sufficiently developed to permit analysis as to whether there was a "pervasive entwinement" between Foster and the undisputed state actors. Accordingly, we view the question whether Foster was acting under color of state law when it towed and later disposed of McDonald's vehicles as an unresolved issue of fact and, thus, as not a proper basis to affirm the judgment entered in favor of Foster.[13]

         Deprivation of a Constitutional Right

         To prevail on her § 1983 claims, McDonald must also show that the claimed state action resulted in the deprivation of a constitutional or federal statutory right. To that end, McDonald asserts that Keahey's and Foster's actions in removing the two vehicles from her property and the subsequent disposal of those vehicles violated her right to be free from unreasonable seizures as guaranteed by the Fourth Amendment and her right to procedural due process as guaranteed by the Fourteenth Amendment. We discuss each claimed right, in turn.

         Fourth Amendment

         The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place ...

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