Conrod v. Missouri State Highway Patrol

PREWITT, Judge,

dissenting.

I agree, not having been raised, whether defendant is a legal entity is not an issue. “It” has participated in cases both as a plaintiff and defendant with no questions apparently being raised by other parties or the courts. See, e.g., Medley v. Missouri State Highway Patrol, 776 S.W.2d 405 (Mo.App.1989); Missouri State Highway Patrol v. Diekman, 700 S.W.2d 148 (Mo.App.1985); Missouri State Highway Patrol v. Robertson, 648 S.W.2d 644 (Mo.App.1988). See also Board of Regents v. Harriman, 792 S.W.2d 388, 391-393 (Mo.App.1990) (judgment in action brought by “Southwest Missouri State University”, a nonlegal entity not void).1

I also agree once federal authorities have possession of property, the state courts cannot make orders affecting the specific property seized. That was the analysis in In re 33rd Dist. Court, 138 Mich.App. 390, 360 N.W.2d 196 (1984), and U.S. v. Alston, 717 F.Supp. 378 (M.D.N.C.1989), cited in the principal opinion. However, this does not prevent the state court from entering judgment for the value of the property improperly taken where it has subject matter and personal jurisdiction. In view of the allegations in Count I, those authorities might justify the dismissal of that count. However, they are not applicable to Counts II or III, and the principal opinion does not apply them to those counts.

The principal opinion decides Count II was improper because defendant was not a “person” under the Civil Rights Act. Count III was said to be ineffective because defendant is protected by sovereign immunity from the tort of conversion. Neither of these grounds were raised by defendant here and we should not dispose of those counts in a manner not raised. Defendant’s three points relied on are set forth below.2

Appellate review is limited to the specific matters urged by appellant. Alcock v. Farmers Mutual Fire Ins. Co., 591 S.W.2d 126, 129 (Mo.App.1979); Freshour v. Schuerenberg, 495 S.W.2d 116, 118 (Mo.App.1973). This court becomes an advocate for appellant when it searches the record beyond the points raised to find a basis to hold the trial court reached an incorrect result. Cain v. Richart, 781 S.W.2d 265, 266 (Mo.App.1989).

The circuit court had jurisdiction. Transferring the property to federal authorities may divest state courts of in rem jurisdiction, but not subject matter or personal jurisdiction. A federal reason for forfeiture does not mean state courts lack juris*619diction where property is improperly seized. We do a disservice to our citizens and those present in Missouri by denying a remedy when a state employee seizes property without cause. Neither the color of plaintiffs skin nor the amount and smell of his money justified the patrolman’s action.

I respectfully dissent.

. The "Missouri State Highway Patrol" is "created" by § 43.020, RSMo 1986, a part of Chapter 43, "Highway Patrol, State”.

. I. The circuit court erred in granting summary judgment for respondent against appellant because, based on the totality of the circumstances, the seizure of the property in question was proper in that probable cause existed to believe the money appellant was transporting had been used to facilitate an illegal drug transaction in that (1) the highway patrolman received widely differing stories from respondent and his mother concerning how respondent came to obtain such money, (2) a very large amount of cash was being transported haphazardly by respondent, and (3) the fact that a trained narcotics dog alerted to the cash indicating that it had traces of narcotics on it.

II. The circuit court erred in granting summary judgment in favor of respondent because the court was without jurisdiction to affect the disposition already obtained under federal law in that the federal court had original jurisdiction as the property had been seized by the DEA and forfeiture proceedings initiated before state proceedings were filed.

III. The circuit court erred in granting summary judgment for respondent rather than appellant because the prior decision by the drug enforcement administration that "there was probable cause to believe the property had been used in violation of law” entitled appellant to the benefits of collateral estoppel in that respondent had a full and fair opportunity to litigate the issue in an earlier case, and that prior judgment is conclusive.