STANGE V. ADENT, 1975-NMCA-024, 87 N.M.
340, 533 P.2d 113 (Ct. App. 1975)
Edward W. STANGE, III,
Plaintiff-Appellant,
vs.
Paul L. ADENT and Z. Romero, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1975-NMCA-024, 87 N.M. 340, 533 P.2d 113
Quincy D. Adams, Adams & Foley,
Albuquerque, for plaintiff-appellant.
Douglas C. Henson, Asst. City Atty., City
of Albuquerque, Albuquerque, for defendants-appellees.
SUTIN, J., wrote the opinion. LOPEZ, J.,
concurs. WOOD, C.J., specially concurring.
{1} Plaintiff sought recovery
from defendants for the unlawful seizure and conversion of certain fireworks,
the property of plaintiff, valued at $751.44, and tools and supplies valued at
$23.61. The case was tried before the court and judgment was entered in favor
of plaintiff for $23.61. Plaintiff appeals. We reverse.
{2} The trial court found
that defendants were acting in their official capacity as representatives of
the Albuquerque Chief of the Fire Prevention Bureau rather than in their
individual capacity; that on July 3, 1972, Romero observed the purchase of
illegal fireworks at a fireworks stand, went to the stand and confronted two
youths operating the stand, all in violation of Albuquerque ordinances. Romero
observed fireworks that he knew were illegal mixed with other fireworks which
were legal for sale; that Adent arrived at the fireworks stand and after his
observation revoked the permit to sell fireworks and confiscated all of the
fireworks as evidence and as a security measure; that when the fireworks and
plaintiff's tools and supplies had been packed into boxes and loaded into an
official car, plaintiff arrived at the scene and claimed ownership of the
stand. He was then cited into Albuquerque Municipal Court. At the conclusion of
plaintiff's trial in municipal court, the judge indicated his intention to
destroy the seized fireworks for lack of proof of ownership.
{3} The court further found
that on September 20, 1972, the municipal judge signed an order in the presence
of Romero to destroy the fireworks; that plaintiff sent Adent a demand by
letter to return the legal fireworks; that Adent took the letter to the
municipal judge who ordered Adent to destroy the fireworks and noted on the
bottom of the letter, "gave permission to confiscate and destroy fireworks
as illegal" in
{*342} the presence
of Adent; that acting in reliance on the orders of the municipal judge,
defendants destroyed the fireworks but inadvertently destroyed the plaintiff's
tools and supplies on November 29, 1972; that plaintiff made no claim to
ownership of the seized fireworks until after his trial in municipal court on
or about September 20, 1972; that no motions or any other form of application
were made by plaintiff to the municipal court for an order to return any of the
seized fireworks.
{4} The trial court concluded
that all of the fireworks were lawfully seized; that defendants had reasonable
cause to believe that the city ordinance was violated prior to seizure of the
fireworks; that defendants cannot be liable for destroying all of the fireworks
since they acted in good faith reliance upon the order of a municipal judge;
that once plaintiff's property was seized by defendants, it was within reach of
municipal process, and proceedings for its return to plaintiff would have been
properly initiated by application to the court.
{5} Reviewing the evidence
most favorable to defendants, the record does not support the material findings
and conclusions of the trial court.
{6} The city ordinance
authorizes the seizure of fireworks "offered or exposed for sale, stored
or held in violation of this article". But defendants knew there was no
provision in the Code which provided for destruction of any fireworks, legal or
illegal. Adent had advised plaintiff's wife at another fireworks stand to take
all illegal items back to the wholesaler and get her money back.
{7} After the seizure,
plaintiff was charged with violation of a city ordinance "providing
against illegal fireworks" in cause No. 4853. At the hearing on September
20, 1972, Romero brought in a small box of fireworks which contained a part of
the fireworks seized and he picked out a few illegal items to show to the
court. Adent was not present. The municipal judge pointed to the box and said
"Destroy those fireworks". On motion of the city, the municipal judge
dismissed the charge against plaintiff because the permit for the firestand was
not in the name of plaintiff, and because plaintiff denied that the fireworks
in the box were ones seized and did not belong to him.
{8} Immediately after the
hearing, in the presence of Romero, the municipal judge signed an order form as
follows:
Albuquerque Police Department
RE: City vs. Edward M. Stange III
This is your authority to (destroy)... the Fireworks
being held in the above 4853 case.
{9} This order form did not
authorize defendants to destroy the fireworks. It was directed to the police
department. If it were interpreted to grant defendants authority to destroy, it
referred to the illegal fireworks in the box presented by Romero.
{10} On the same day,
plaintiff sent Adent a letter to return the fireworks. Adent took the letter to
the municipal judge for an opinion on what should be done. The judge told him
that plaintiff had denied ownership of the fireworks (that were in the
courtroom) and to destroy all of them, and the judge wrote on the bottom of the
letter, "gave permission to confiscate and destroy fireworks as
illegal." The permission granted did not include legal fireworks.
{11} All of this occurred
without the knowledge of the plaintiff. On November 29, 1972, all the fireworks
were destroyed. Plaintiff never received any notice of the judge's order or
notation that any of the fireworks would be or had been destroyed. His only
knowledge was the judge's remark in the courtroom to destroy the fireworks in
the box which plaintiff said were not his.
{12} There was no evidence
that, at trial, the judge indicated his intention to destroy the legal
fireworks or that the judge signed an
{*343}
order to destroy the legal fireworks, or gave permission to destroy the
legal fireworks.
{13} Plaintiff made claim to
ownership of the seized fireworks after his trial in municipal court. No duty
arose to file any motion thereafter for an order to return any of the seized
fireworks. The reasons are: (1) that plaintiff believed the box of fireworks in
the courtroom were not his, and (2) plaintiff, prior to destruction of all the
fireworks, was not notified of any order for destruction or permission to
destroy his fireworks. The fireworks were destroyed over five weeks after the
court hearing.
{14} The only remaining issue
is whether defendants are liable because they acted in good faith reliance upon
the orders of the municipal judge.
{15} We have held that a
search warrant issued by a court of competent jurisdiction and which was fair
and valid on its face protected the officers from liability for its service and
execution. Torres v. Glasgow,
80 N.M. 412,
456 P.2d 886 (Ct. App.1969).
{16} However, we are now
confronted with two firemen who exceeded the perimeter of their authority.
... [W]e agree with the authorities holding that a
ministerial officer, acting under process fair on its face, issued from a
tribunal or person having judicial powers, with apparent jurisdiction to issue
such process, is justified in obeying it against all irregularities and
illegalities except his own. [Emphasis added]
{18} Defendants were not
justified, while obeying any alleged orders of the municipal judge, to perform
any irregular or illegal acts. They were justified in destroying the illegal
fireworks in the box used as evidence in the municipal court hearing, regardless
of the ownership of the fireworks. They were not justified in destroying all of
the seized property of the plaintiff, at least without notice to the plaintiff
of their intention to do so in compliance with the court's alleged orders in
order to provide plaintiff with an opportunity to protect his property rights.
Plaintiff requested that legal fireworks be returned. Defendants failed to
answer the request or return the legal fireworks. In silence, they destroyed
plaintiff's property.
{19} Defendants' contentions
are only within the area of damage for illegal search and seizure. Apodaca v.
Miller,
79 N.M. 160,
441 P.2d 200 (1968); Bivens v. Six Unknown Named Agents of
Fed. Bur. of Narc., 456 F.2d 1339 (2nd Cir. 1972). The rules stated are far
afield of plaintiff's claim of unlawful seizure of legal fireworks and the
conversion thereof. The evidence is undisputed that defendants wrongfully
obtained possession of the legal fireworks, wrongfully detained them after
demand therefor by the owner, and destroyed them. Taylor v. McBee,
78 N.M. 503,
433 P.2d 88 (Ct. App.1967); Molybdenum Corp. of America v. Brazos Engineering
Company,
81 N.M. 708,
472 P.2d 971 (1970).
{20} Plaintiff is entitled to
recover the reasonable value of the legal fireworks.
{21} The judgment for
defendants is reversed. The cause is remanded with instructions to award a new
trial limited solely to the question of plaintiff's damages.
WOOD, C.J., specially concurring.
WOOD, Chief Judge (specially concurring).
{23} No question is presented
concerning the seizure and destruction of illegal fireworks. The issues involve
legal fireworks. To dispose of this case it is unnecessary to decide any
questions: (1) as to the seizure of legal fireworks, (2) as to the authority of
the municipal judge to order the destruction of legal fireworks, (3) as to
notice
{*344} requirements prior to
their destruction, or (4) as to motions requesting their return.
{24} I assume a valid seizure
of the legal fireworks. It is undisputed that legal fireworks were destroyed by
defendants. It is undisputed that these fireworks were owned by plaintiff. This
evidence, prima facie, establishes a conversion because it establishes an
exercise of dominion over the legal fireworks inconsistent with the owner's
rights. Molybdenum Corp. of America v. Brazos Engineering Co.,
81 N.M. 708,
472
P.2d 971 (1970).
{25} The defense to this
prima facie showing was that the defendants relied on orders of the municipal
court valid on their face. This defense does not apply to defendant's own
"irregularities and illegalities". Territory v. Lynch,
18 N.M. 15,
133 P. 405 (1913).
{26} The record is
uncontradicted that at the municipal court trial, Judge Robins was shown only illegal
fireworks. Plaintiff's letter to Adent asserted there were legal fireworks, but
Judge Robins' notation at the bottom of the letter describes all the fireworks
as illegal. There is nothing in this record indicating defendants informed
Judge Robins that they held legal fireworks. Their nondisclosure is an
irregularity and this irregularity prevents them from relying on Judge Robins'
order. Not being able to rely on the Judge's orders, they are liable for
conversion.
{27} On the basis of the
foregoing, I concur in a reversal of the judgment and a new trial limited
solely to the question of damages.