A06-546

Darryl Burton,

Appellant,

vs.

City of Minneapolis,

Respondent.

Filed April 3, 2007

Affirmed

Willis, Judge

Hennepin County District Court

File No. 05-3544

Shawn L. Pearson, Steven H. Silton, Jamie R. Pierce, Andrew T. Jackola, Mansfield, Tanick & Cohen, P.A., 1700 US Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Jay M. Heffern, Minneapolis City Attorney, Charles J. Brown Jr., Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant seeks the return of cash that was seized by the police when they arrested him for a controlled-substance offense. He challenges the district court’s determination on summary judgment that the statute of limitations bars his negligence, conversion, and unjust-enrichment claims. We affirm.

FACTS

On September 1, 1994, police officers from respondent City of Minneapolis arrested appellant Darryl Burton for possession of cocaine and seized $22,072 in cash, which was inventoried and stored in the department’s property room. On March 31, 1995, Burton pleaded guilty to federal drug charges and was sentenced to 151 months’ imprisonment.

On January 17, 1995, Stanley Capistrant, then a Minneapolis police officer, fraudulently signed out the $22,072 as part of a larger scheme in which Capistrant absconded with more than $390,000 from the Minneapolis police department. Capistrant was ultimately convicted on federal charges in connection with the scheme. As part of his sentence, Capistrant was ordered to make restitution to the city, and in January 2004, Capistrant made his final restitution payment. The city did not notify Burton of the loss of the $22,072 or of the payment of restitution.

On September 19, 2000, Burton served a complaint against the city, alleging negligence and conversion, and demanding the return of the $22,072 under Minn. Stat. § 626.04 (2000), which allows a property owner to petition the court for an order requiring the return of property seized by the police. Burton served the police chief instead of the city clerk. In November 2005, conceding that the 2000 service of process was ineffective, Burton served and filed an amended complaint against the city. In his amended complaint, Burton alleges (1) that the city had “no legal claim to the portion of [Capistrant’s] restitution” that is attributable to the $22,072 and that the city’s failure to pay those funds to Burton constitutes conversion; (2) that because the city did not follow statutory forfeiture procedures, it had no right to the $22,072 and that allowing it to keep that portion of Capistrant’s restitution attributable to the $22,072 constitutes unjust enrichment; and (3) that the city negligently failed in its duties to notify Burton of its intent to seek forfeiture of the $22,072 and to pay over to Burton that portion of the restitution attributable to the $22,072.

The city moved for summary judgment, arguing that Burton’s claims are time-barred. The district court granted the city’s motion, determining that Burton’s claims were a “creative recharacterization” of his earlier claims seeking the return of the $22,072 because of an alleged improper forfeiture and are therefore subject to the same limitations period. The district court then determined that although the city failed to give Burton proper notice of forfeiture, Burton became “aware of the forfeiture” on the date of his federal conviction, March 31, 1995, and, the district court concluded, the statute of limitations ran from that date. Applying a six-year statute of limitations, the district court ruled that the limitations period expired on March 31, 2001, and that, therefore, Burton’s claims are barred as a matter of law. This appeal follows.

D E C I S I O N

Burton argues that the district court erred by determining that the claims asserted in his 2005 complaint are time-barred. On review of a grant of summary judgment, this court considers the record as a whole and determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The construction and the applicability of a statute of limitations is a question of law, which we review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1988).

The district court determined that Burton’s 2005 claims were a “creative recharacterization” of his earlier claims and therefore the same limitations period applied to both his 2000 and his 2005 claims, and that because the claims that Burton attempted to make in his 2000 complaint are now time-barred, so also are the 2005 claims. In Minnesota, a claim may fail if that claim depends on an interest that can no longer be established because any claim arising from that interest is time-barred. See Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (1975). In Wild, the defendant argued that the plaintiff’s claim of wrongful interference with business relationships was “simply another label for” the plaintiff’s time-barred defamation claim because the wrongful interference alleged was defamation. Id. at 443, 234 N.W.2d at 790-91. Although a claim of wrongful interference with business relationships was generally subject to a six-year limitations period, the supreme court determined that the two-year limitations period for defamation claims applied. Id. at 446-47, 234 N.W.2d at 793. As the court explained, the interference-with-business-relationships claim was barred because “regardless of what the suit is labeled, the thing done to cause any damage to [the plaintiff] eventually stems from and grew out of the defamation.” Id. Thus, because the plaintiff’s defamation claim was barred, he could not establish a wrongful-interference claim that was based on an allegedly defamatory act.

Burton argues that his 2005 claims are different from his 2000 claims, arguing that the claims in his 2000 complaint sought to recover the wrongfully forfeited $22,072 but that his 2005 claims are based on an “equitable claim” to the restitution of the $22,072. Although Burton uses different labels for the claims made in his two complaints, he seeks to vindicate the same interest—his claimed ownership of the seized $22,072. Burton’s 2005 unjust-enrichment and conversion claims rest on the allegation that the city failed to follow statutory forfeiture procedures and that, therefore, it has no right to that portion of the restitution attributable to the $22,072. And Burton’s negligence claim rests on the allegation that the city negligently failed in its duties to notify Burton of its intent to seek the forfeiture of the $22,072 and, later, to pay to him the portion of the restitution attributable to the $22,072. Thus, regardless of whether Burton seeks the return of the original $22,072 in cash, as he attempted to do in his 2000 complaint, or seeks that portion of the restitution attributable to the $22,072, as he does now, each of Burton’s claims rests on his allegations that the city failed to follow statutory forfeiture procedures and that, consequently, it is not entitled to the $22,072.

We conclude that Burton’s claim that the city is not entitled to the $22,072 is time-barred. Minn. Stat. § 541.05(4) (2006) establishes a six-year limitations period for claims of “taking, detaining, or injuring personal property, including actions for the specific recovery thereof.” The limitations period begins when a cause of action “accrues.” Dalton v. Dow Chemical Co., 280 Minn. 147, 150, 158 N.W.2d 580, 583 (1968). A cause of action accrues when it could survive a motion to dismiss. Noske v. Friedburg, 670 N.W.2d 740, 742 (Minn. 2003).

Property seized as part of a criminal investigation and subject to forfeiture is governed by a series of statutes that delay the beginning of the limitations period. Minn. Stat. § 626.04(a) (2006) provides that property seized shall be “safely kept by direction of the court as long as necessary for the purpose of being produced as evidence on any trial.” Section 626.04(a) authorizes the property owner to make a written demand for the return of the property, and, if the demand does not result in recovery of the property, to seek a district court order requiring its return. But the statute provides that the court shall not order the return of the property if it “may be subject to forfeiture proceedings.” See also Minn. Stat. § 609.531, subd. 5 (2006) (providing that a replevin action is not available to recover property subject to forfeiture).

Burton does not dispute that the $22,072 was subject to forfeiture. See Minn. Stat. § 609.5311, subd. 2(a) (2006) (establishing that property connected with the manufacturing, distribution, or use of controlled substances is subject to forfeiture). In State v. $6,276 in U.S. Currency, the defendant was convicted of gambling offenses in January 1987. 478 N.W.2d 333, 334 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992). In March 1990, the state brought a forfeiture action against the currency seized during the investigation. Id. at 335. After determining that a two-year limitations period applied to the state’s forfeiture complaint and that the period expired, this court determined that the money was no longer “subject to detention” after the statute of limitations had expired and affirmed the district court’s order requiring the return of the funds. Id. at 337. We have also held that the statute of limitations on a forfeiture claim expires two years after the date on which the owner’s conviction is final—that is, the date on which any appeal rights are exhausted. Humphrey v. $1109 in U.S. Currency, 539 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995).

Applying these principles to the facts here, because the $22,072 was subject to forfeiture until two years after Burton’s conviction became final, Burton’s claim that the $22,072 was improperly forfeited would have been premature and, therefore, could not have survived a motion to dismiss until that date. Thus, the earliest that any claim to recover the $22,072 or seeking damages on account of the continued detention of the funds could have been brought was March 31, 1997. Applying the six-year statute of limitations to a claim seeking the return of the $22,072, the statute of limitations expired on March 31, 2003. Although Burton attempted to bring suit in 2000, he admits that the service of process was ineffective. Applying Wild, because Burton’s 2005 claims “stem[] from and grew out” of his time-barred claim that the city is not entitled to the $22,072, his 2005 claims are time-barred as well. To use the district court’s words, Burton’s “creative recharacterization” of his earlier time-barred claims cannot save his 2005 claims.

Affirmed.