*1 Marken, appel- for Casper, Kenneth R. lant. LAFFERTY, Johnny Franklin (Plaintiff), of Mu- W. and Jo Sherman James Owens Bostwick, appellees. Casper, rane & NICKEL, Rich Mark S. Officer
Officer Patton, RAPER, Brite and the ROONEY*, C.J., Reserve Officer and Before (De- Wyoming, Appellees BROWN, THOMAS, **, Town JJ. ROSE fendants). ROONEY, Chief Justice.
No. 5758. 27, 1981, Johnny Franklin November On Supreme Wyoming. Court of appellant-plaintiff, filed a civil Lafferty, 9, 1983. Nickel, Officer Mark S. Officer Brite, Patton, and the Rich Reserve Officer alleg- Mills, appellees-defendants, Town of were liable for various ing appellees out arising violations torts and civil Ap- arrest. March appellant’s judgment, rely- summary pellees moved The district court ing pleadings. summary appellees’ motion for granted limi- finding that the statutes of judgment1 claims for tations the Town of Mills relief had run and that protected immunity. On sovereign doctrine of issues as fol- appellant words the appeal, lows: grant- the District err in
“A. Did Court Summary Judg- Motion for ing Appellees’ Appellant’s claims grounds ment on limitations were barred statutes of Appellant’s pleadings where the the exist- Appellees’ Answer denied underlying of a material fact ence statutes, where of said application unsup- otherwise Appellees’ Motion was discovery Affidavits or materi- ported by als? Wyo- Does the applicability
“B. Claims Act extend ming Governmental Appellee law enforce- liability assault, ment officers for the torts prosecution, malicious and/or battery, one-year imprisonment beyond false provided by Wyo- l-3-105(a)(v), (1977)? ming Statute § * prejudice January 1. The district court dismissed Justice on Became Chief conversion made claim of unlawful ** against the officers. argument. Justice at time of oral Chief
169
693,
Appellee
(10th Cir.1966);
“C.
Is the
Town of Mills shield-
696
Appellant’s
ed from
or all of
claims
any
v.
Chrysler Plymouth,
Parker
DeKalb
459
Sovereign Immunity?”
the Doctrine of
184,
F.Supp.
(D.C.Ga.1978),
187
aff’d 673
(11th Cir.1982);
F.2d 1178
6 Moore’s Feder-
with the district court
agree
We
Practice,
56-29,
¶¶
al
56.02[3], pp.
56.11[3],
claims for relief were barred
p.
Therefore,
purpose
56-229.
for the
statutes of limitations and
applicable
this
facts
in the com-
we affirm.
plaint are deemed
allega-
admitted and the
grant
judg-
The
of motion for summary
a
tions contained therein are
in light
viewed
ment
the district court to make the
appellant.
most favorable to the
Moxley v.
genu-
dual determinations “that there is no
Builders, Inc.,
733,
Laramie
Wyo., 600 P.2d
ine
as to
material fact and that
any
issue
(1979);
Highway
v.
State
Commission
is entitled to
moving party
judgment
59,
Bourne,
(1967).
425 P.2d
Wyo.,
56(c),
as a matter of law.” Rule
W.R.C.P.
rule,
summary
As a
motions for
Appellant’s complaint
sep-
consists of five
supported by competent
are to be
judgment
alleges
arate claims —the first claim
various
trial,
we
evidence admissible at
and
part
tortious acts on the
of appellees and
required to examine that evidence from a
through
allege
the second
fifth claims
vari-
party op-
most favorable to the
viewpoint
ous civil
violations.
the determina-
posing
making
the motion
sequence
appel-
of events
genuine
tion of whether or not there is a
predicates
lant
his claims are: He was
Hyatt
Big
issue as to a material fact.
v.
jailed
24,
stopped, arrested and
on March
4, Wyo.,
Horn
District No.
636 P.2d
School
1979,
municipal
for two violations of the
525,
(1981);
Jagusch,
and Bancroft v.
ordinances of the Town of Mills. His im-
course,
P.2d
Of
Wyo., 611
approximately
ended
twelve
prisonment
judgment
proper
summary
motion for
hours after arrest on March
1979. He
and
question
prescribed
where a
of law is
26, 1979,
formally charged
was
on March
Lara-
dispute.
there is no factual
Mason v.
April
convicted after a trial on
Company, Wyo.,
mie Rivers
490 P.2d
judgment
1979.
a formal
On
(1971); Fugate
v.
Mayor
ap-
Appellant
and sentence
entered.
Buffalo,
348 P.2d
Council of Town of
his convictions to the district court
pealed
76, 81,
Appellant also refers to the holding years of more than two after his claims ac 90, 101 v. McCurry, Allen crued, U.S. S.Ct. they are barred.
“(a) Civil actions other only real be covery property period. to extend statutes of limitations af- following periods brought notice of the claim to That section the cause of action accrues: ter given government entity within two
¡f¡ # [*] n years act, error or omission or not discov- unless it was not discoverable “(v) (1) an action for: year, Within one diligence due despite ered the exercise of slander; “(A) Libel or act, error or omis- years within two “(B) battery; Assault or timely notify sion. The failure to “(C) or false Malicious the claimant government entity precludes or imprisonment; bringing Wyo- an action under the “(D) Upon penalty for a statute Act. Section ming Governmental Claims forfeiture, if a different except fn. 4. in the statute prescribed (cid:127)limitation appellant In this case concedes the action given which the occurred in complains actions of which he pre- brought within March, of 1979 and were April, May (Emphasis scribed the statute.” of their occur- discovered within two added.) l-3-105(a)(v), required appellant rence. to the Town of Mills present his claim more, clearly these claims Without pre- in order to not later than appellant’s complaint barred since filed an action under the serve two years on November more than *5 Ap- Act. Wyoming Governmental Claims upon after the occurrences such with the Town pellant not file his claim did claims were based. 25,1981, more than of Mills until November however, that the Appellant argues, alleged two the date Act, 1- Claims Wyoming § Governmental actions, by he 1-39- precluded § W.S.1977, Cum.Supp.1982, et seq., 39-101 4, 113(a), supra, bringing fn. from an statute of limita provides three-year4 Claims Wyoming under the Governmental from tortious “resulting tions for an action Act. officers while conduct of law enforcement rights holding appellant’s Our that duties.” scope within the of their statutes by claims are barred 1-39-112, W.S.1977, Cum.Supp. appellant’s of limitations tort Assuming 1982. brought because of may tort claims not be subject to the Wyoming claims are Govern file a claim Act5, timely failure to they properly mental were not Claims unneces- the Town of makes it it. relies on the with processed under “(ii) three-year figure by adding The claimant failed to discover this 4. He reaches act, one-year alleged within the two in error or omission limitation § two-year Cum.Supp. (2) year period despite notice the exercise of due to the 1-39-113, W.S.1977, Cum.Supp. provision diligence.” in § provides pertinent pertinent part: 1982. Section 1-39-113 Section 1-39-114 part: provided, “Except otherwise actions as entity public governmental or a brought “(a) under this No action employee acting of his entity governmental act unless occurring after June duties for torts is based is claim presented which the action subject shall be forever which are to this act entity state- to the as an itemized (1) year within one barred unless commenced (2) years writing within ment two pursuant omission, act, the claim is filed to alleged after the date date of the except error or * * *” may W.S. 1-39-113. that a cause of action be institut- (2) years after dis- ed not more than two assumption tort this act, omission, Without covery if error or one-year by clearly would be barred the claimant establish that period applicable to these causes. act, limitation error or omission was: l-3-105(a)(v), supra. “(i) reasonably See § within a Not discoverable (2) year period; two sary to address the third issue raised prompt filing of the civil action with a appellant. stay until the criminal is de- termined as a solution.
Affirmed.
I am satisfied that the thrust of Allen v.
THOMAS, Justice, specially concurring. McCurry,
U.S.
S.Ct.
L.Ed.2d
(1980),
is that the principles of
I concur in the result of this case as
judicata
res
estoppel
collateral
ap-
announced in the
I
majority opinion. would
plicable
prevent
the relitigation in a civil
however,
prefer,
espouse
the court
action under 42 U.S.C.
1983 of issues
such instances a tolling
respect
rule with
tried in state court criminal proceedings.
I
the statute of limitations because it seems
can see no
why
reason
those principles
to me that there is a likelihood of situations
should not also foreclose the retrial of issues
arising in which the
accused
would
in claims
based
common-law torts.
be foreclosed by
judica-
the doctrines of res
also,
See
Rodriguez,
Preiser v.
411 U.S.
ta and collateral estoppel
pursuing
93 S.Ct.
counted Mm in law enforcement officers is neces- right, whether limitations have barred his excep- creation of an sary the courts are reluctant though even In this tion to the statute of limitations. additional to those knowledge exceptions ” * * * is reached as in the case the same result in the statute itself: contained is the statute majority opinion because support cited there do the textual The cases days the action was only yet tolled for different, the factually While conclusion. causes days filed 2 and 250 those cases a con- rationale of does accrued, except pros- for malicious of action statutory like this that the clusion in cases ecution. held to of limitations should not be agreement with I do add that I am not the criminal during run that the position majority opinion of the appeal. prosecution for malicious cause of action In 51 Am.Jur.2d Limitation of Actions the defendant’s ar- accrued at the time of proposition is stated as p. Wyoming prosecution. The law in rest and follows: the claim for malicious is that laid down that when- “The broad rule is underlying state not accrue until does paramount authority prevents ever some terminated in favor of proceeding court has exercising legal his reme- from Lin- v. Johnston Fuel plaintiff. Weber which he is thus dy, the time ers, Inc., P.2d 535 Wyo., 540 counted prevented is not to be not accrue that cause of action did instance determining him in whether statute I still concur in until November even of limitations has barred however, be- majority, decision specific ex- though the statute makes police that these there is no indication cause in such cases. This ception his favor officers were not give effect to a rule enables the courts duties, therefore can- they official their exception object an creating law prosecution. malicious not be sued for from run- prevent which is to the statute River, Kimbley of Green pre- during the time the claimant ning P.2d 871 vented, part, fault on his majority opinion facet of the One other have the full benefit suing, so that he can agree I do not that even troubles me. which to time allowed him in Wyoming application of the hypothetical rule, injunction an his action. Under this Act, 1-39-101 et Governmental Claims §§ prevents legal or other proceeding appropri- (Cum.Supp.1982), seq., W.S.1977 exercising legal one from July effective statute became ate. That op- suspends tolls or against another months after more than three ”* * of limitations. eration of the statute satisfied that it is Lafferty. I am arrest *7 no and could have substantive nature language is the like tenor and effect Of occurred to those events which application Limitation of Ac- in 51 Am.Jur.2d found I that it became effective. prior to the date 170, p. tions would, therefore, applica- rule that it has and would not tion to these circumstances necessary that it is my Because of view computation hypothetically even discuss of action to citizens this cause preserve limitations as affected period of a violated, I would not rights may be whose statute. limita- them the statute of apply time for which period tions period case that the I would hold in this and could criminal conviction is effective the date the was tolled from of limitations of civil until the asserted to foreclose was effective criminal conviction judicata or the doctrine of res In this instance that claims under it was reversed. date however, enough, my long If is not estoppel. the doctrine of collateral of time the statute of State, application has va- to bar the in Jessee v. argument claim. limitations to of the civil lidity preservation then the