{ "id": 4155405, "name": "FRANK S. KIRSCHBAUM, Plaintiff v. McLAURIN PARKING COMPANY; McLAURIN MANAGEMENT ASSOCIATES, INC.; QUANTUM SUPPORT, INC., Defendants", "name_abbreviation": "Kirschbaum v. McLaurin Parking Co.", "decision_date": "2008-02-19", "docket_number": "", "first_page": "782", "last_page": "790", "citations": [ { "type": "official", "cite": "188 N.C. App. 782" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "815", "parenthetical": "listing the elements of larceny" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "page": "233", "parenthetical": "listing the elements of larceny" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "481 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "24" } ], "opinion_index": 0 }, { "cite": "345 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53966 ], "year": 1997, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0356-01" ] }, { "cite": "608 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "829", "parenthetical": "citations and quotations omitted" }, { "page": "829" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471671 ], "year": 2005, "pin_cites": [ { "page": "675", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0671-01" ] }, { "cite": "642 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "505", "parenthetical": "citations and quotations omitted" }, { "page": "506", "parenthetical": "citations and quotations omitted" }, { "page": "506-07", "parenthetical": "citations, quotations, and alterations omitted" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172925 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "450", "parenthetical": "citations and quotations omitted" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0447-01" ] }, { "cite": "1983 N.C. Sess. Laws 386", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "596 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "462", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898536 ], "year": 2004, "pin_cites": [ { "page": "507", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0499-01" ] }, { "cite": "72 S.E. 7", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "opinion_index": 0 }, { "cite": "156 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "year": 1911, "opinion_index": 0 }, { "cite": "100 S.E. 602", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "606", "parenthetical": "quoting State v. Davenport, 156 N.C. 602, 72 S.E. 7 (1911)" } ], "opinion_index": 0 }, { "cite": "178 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272398 ], "year": 1919, "pin_cites": [ { "page": "350", "parenthetical": "quoting State v. Davenport, 156 N.C. 602, 72 S.E. 7 (1911)" } ], "opinion_index": 0, "case_paths": [ "/nc/178/0348-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-107", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "stating that tampering with a vehicle without the owner's consent is a Class 2 misdemeanor" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-219.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "stating that it is unlawful for an unauthorized person to park in a private parking space provided that the private parking lot contains certain signage" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "400 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527942 ], "year": 1991, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0529-01" ] }, { "cite": "521 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "704", "parenthetical": "citations and quotations omitted" }, { "page": "704", "parenthetical": "\"Constructive possession is a legal fiction existing when there is no actual possession, but there is title granting an immediate right to actual possession.\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155615 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "155", "parenthetical": "citations and quotations omitted" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0151-01" ] } ], "analysis": { "cardinality": 779, "char_count": 17064, "ocr_confidence": 0.748, "pagerank": { "raw": 5.7679982940657615e-08, "percentile": 0.3604028651863487 }, "sha256": "62e26c7de04600020f4e638cf18bff395e4a2032cf25102cbc90232ef036abbe", "simhash": "1:1d78863e04171956", "word_count": 2771 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McCULLOUGH concur." ], "parties": [ "FRANK S. KIRSCHBAUM, Plaintiff v. McLAURIN PARKING COMPANY; McLAURIN MANAGEMENT ASSOCIATES, INC.; QUANTUM SUPPORT, INC., Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nFrank S. Kirschbaum (plaintiff) appeals from an order of summary judgment in favor of McLaurin Parking Company (McLaurin Parking) and Quantum Support, Inc. (Quantum) (together, defendants).\nAround noon on 1 March 2006, a weekday, plaintiff parked his car in a private parking lot sub-leased by McLaurin Parking (Lot 11). McLaurin Parking leases the spaces in that lot to long-term tenants during the work week, and to a nearby restaurant, Caff\u00e9 Luna, during evenings and weekends. McLaurin Parking employs Quantum to monitor the lot, provide security, and ensure that the people who have paid for parking spaces in the lot have access to their space during the appropriate hours.\nThe entrance to Lot 11 is flanked on each side by a sign. At the time of the incident, the sign on the left side of the entrance stated the following:\nEVENING & WEEKEND PARKING FOR CAFF\u00c9 LUNA PATRONS ONLY\n6 pm until Midnight Weekdays 8 am until Midnight Weekends\nDAY TIME PARKING & ADDITIONAL EVENING PARKING IN WILMINGTON STREET DECK (CONTINUE ON HARGETT \u2014 TURN RIGHT ON WILMINGTON ENTER MIDDLE OF BLOCK)\nWARNING\nPARKING NOT PERMITTED AFTER MIDNIGHT ANY AUTOMOBILE IN LOT AFTER MIDNIGHT SUBJECT TO BEING TOWED AT OWNERS EXPENSE\nThe owner of Caff\u00e9 Luna, Parker Kennedy, drafted the language on this sign. He stated in an affidavit that he had the sign\nplaced in the parking lot so that it would be clear to patrons of my restaurant and members of the general public whether they were permitted to park in this lot. The language contained on this sign clearly indicates that Caff\u00e9 Luna patrons may only park in this lot during evening hours before midnight and on the weekends. As a convenience to those who seek to park in the lot, but cannot, either because there are no available space[s] or because they are not authorized to do so, l included instructions on the sign indicating where public parking is available near my restaurant.\n(Emphasis added).\nThe sign to the right of the entrance into Lot 11 stated the following:\nPERMIT PARKING\nILLEGALLY PARKED AND UNAUTHORIZED VEHICLES WILL BE TOWED AT VEHICLE OWNER\u2019S EXPENSE 24 HOURS A DAY-7 DAYS A WEEK\nACE TOWING 821-2121\nMcLaurin Parking does not tow vehicles from Lot 11 because there is not enough space in the lot for a tow truck when all of the spaces are filled, and because it is not McLaurin Parking\u2019s policy to tow vehicles. McLaurin Parking installed the sign at the request of the Raleigh Police Department as a crime deterrent.\nPlaintiff did not have a permit to park in Lot 11 and had no verbal or written agreement that he could park in Lot 11. Although there were three public parking lots within approximately 100 yards of Lot 11, plaintiff chose to park in Lot 11 while he had lunch, on a weekday, at Caff\u00e9 Luna. Plaintiff spent about two hours having lunch at Caff\u00e9 Luna. During that time, the person who leased the parking space returned from his own lunch outing to discover that plaintiff had parked in his space. The authorized lessee notified McLaurin\u2019 Parking that somebody had parked in his space. A Quantum security guard, Samuel Okoya, investigated the situation and determined that the Toyota Land Cruiser parked in the space was not an authorized vehicle. Okoya then placed an immobilization device commonly referred to as a \u201cboot\u201d on plaintiff\u2019s car. According to Okoya\u2019s affidavit,\nThe boots used by Quantum Support, Inc. have been designed so that damage, scratching or marring of the vehicle\u2019s wheel, rim edge or hubcap does not occur. In addition to the precautions taken by the manufacturer to prevent damage to the vehicle, Quantum Support, Inc. also places a piece of carpet, one-half inch in thickness, in between the boot and the wheel each time a vehicle is immobilized. The carpet is removed when the boot is removed from the vehicle.\nOkoya employed the extra-precautionary piece of carpet when he booted plaintiff\u2019s car.\nWhen plaintiff returned to his car after lunch, he saw that his car had been booted and that an immobilization notice had been placed on his window. The notice instructed plaintiff to contact Quantum so that the boot could be removed upon the payment of a $50.00 fee. The notice also provided Quantum\u2019s telephone number. Plaintiff returned to Caff\u00e9 Luna and asked Parker Kennedy to remove the boot. Kennedy advised plaintiff to follow the instructions on the notice.\nInstead, plaintiff attempted to remove the boot himself. Eventually, plaintiff was able to remove the entire wheel from his car and replace it with a spare. He placed the wheel, with boot still attached, into his car and drove away. Plaintiff admitted during his deposition that he scratched his wheel during his attempt to remove the boot and that the boot did not cause damage to his vehicle until he attempted to remove it. The next day, plaintiff removed the boot from the wheel.\nMcLaurin Parking contacted the Raleigh Police Department to ask for help in recovering the boot. This was also done in case McLaurin Parking had to file an insurance claim. A police officer visited plaintiff and told plaintiff that he had to return the boot to McLaurin Parking. Plaintiff responded that \u201c[he] was going to let them bid on it on eBay like everybody else . . . ,\u201d Plaintiff later returned the boot to the Raleigh Police, who returned it to McLaurin Parking. McLaurin Parking representatives told the officer that they were satisfied with the return of the boot and did not want to do anything else. Defendants did not pursue criminal charges.\nPlaintiff first argues that the trial court erred by granting summary judgment in favor of defendants with regard to his claim that defendants trespassed against plaintiff\u2019s personal property when they \u201clocked a metal object to Plaintiff\u2019s vehicle such that it could not be driven.\u201d Plaintiff cites only to the Restatement (Second) of Torts for the elements of trespass to chattel, without further reference to any legal authority with precedential value.\nNevertheless, we supply plaintiff with the proper elements of trespass to chattel and find that plaintiff\u2019s argument lacks merit. To satisfy a claim for trespass to chattel, a plaintiff must \u201cdemonstrate that [he] had either actual or constructive possession of the personalty or goods in question at the time of the trespass, and that there was an unauthorized, unlawful interference or dispossession of the property.\u201d Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999) (citations and quotations omitted). Actual damages, however, are not an element of trespass to chattel. Hawkins v. Hawkins, 101 N.C. App. 529, 533, 400 S.E.2d 472, 475 (1991).\nWe are satisfied that plaintiff had, at the very least, constructive possession of his car. See Fordham, 351 N.C. at 155, 521 S.E.2d at 704 (\u201cConstructive possession is a legal fiction existing when there is no actual possession, but there is title granting an immediate right to actual possession.\u201d) However, there was no \u201cunauthorized, unlawful interference or dispossession of the property.\u201d Id. Plaintiff claims that the general principle that a private property owner has an \u201cabsolute right to the exclusive use and enjoyment\u201d of his private property \u201cdoes not hold true with respect to private parking lots.\u201d Plaintiff cites to criminal statutes in support of this claim. See N.C. Gen. Stat. \u00a7 20-219.2 (2005) (stating that it is unlawful for an unauthorized person to park in a private parking space provided that the private parking lot contains certain signage); N.C. Gen. Stat. \u00a7 20-107 (2005) (stating that tampering with a vehicle without the owner\u2019s consent is a Class 2 misdemeanor).\nPlaintiff\u2019s reliance is misplaced. The first statute defines the State\u2019s right to prosecute private citizens who trespass in private parking lots, but does not and cannot define the rights between two private citizens when one citizen trespasses upon the real property of the other. The second statute defines the State\u2019s right to prosecute private citizens who tamper with a vehicle that does not belong to them, but- does not and cannot provide separate recourse for the owner of the vehicle against the tamperer. Having been directed to the Restatement, we find that the following principle applies to the situation at hand:\n[O]ne is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor\u2019s land or chattels or his possession of them, and the harm inflicted is not unreasonable as compared with the harm threatened.\nRestatement (Second) of Torts \u00a7 260(1) (1965).\nThe application of a boot to a car is an \u201cinterference\u201d with the property. Plaintiff correctly deduced that the main purpose of a car is transportation, and that one cannot drive around with a boot attached to the wheel of one\u2019s car. However, defendants were privileged to attach that boot to plaintiffs car to protect their right to exclusive possession of Lot 11. Plaintiff has provided no relevant legal authority stating otherwise.\nWe also note that \u201crightful possession \u2018cannot be vindicated by a bludgeon,\u2019 but must be determined by a resort to legal proceedings.\u201d Kirkpatrick v. Crutchfield, 178 N.C. 348, 350, 100 S.E. 602, 606 (1919) (quoting State v. Davenport, 156 N.C. 602, 72 S.E. 7 (1911)). Quantum provided plaintiff with a telephone number that he could have called to have the boot removed. Quantum also has an appeals process for people who contend that they were improperly booted. Plaintiff did not avail himself of either.\nPlaintiff next argues that the trial court erred by granting summary judgment in favor of defendants with regard to plaintiff\u2019s claim that he is entitled to recover for damage to his personal property, which he alleges was caused by defendants\u2019 unlawful actions. In his deposition, plaintiff testified that the wheel of his car \u201cwas physically damaged by the metal object locked to it by Defendants.\u201d Plaintiff also testified that he himself inflicted the damage to the wheel. Having already determined that defendants were within their rights to boot plaintiff\u2019s car, and that plaintiff inflicted the damage himself by resorting to a bludgeon rather than a legal remedy, we hold that this argum\u00e9nt lacks merit.\nPlaintiff next argues that the trial court erred by granting summary judgment in favor of defendants with regard to plaintiff\u2019s claim that defendants\u2019 actions constitute unfair and deceptive trade practices. We disagree.\n\u201cTo establish a prima facie case of unfair and deceptive trade practices, a plaintiff must show: (1) the defendant committed an unfair or deceptive trade practice; (2) the action in question was in or affecting commerce; and (3) the act proximately caused injury to the plaintiff.\u201d Di Frega v. Pugliese, 164 N.C. App. 499, 507, 596 S.E.2d 456, 462 (2004) (citation omitted). \u201cAn act is unfair if it is unethical or unscrupulous, and it is deceptive if it has a tendency to deceive.\u201d Id. (citation omitted). We have already determined that defendants were privileged to boot plaintiff\u2019s car. In addition, our General Assembly has specifically authorized private parking lot owners in Forsyth County to boot unauthorized vehicles, which further suggests that the act is neither unethical nor unscrupulous. Act of June 7, 1983, ch. 459, sec. 4, 1983 N.C. Sess. Laws 386 (codified at N.C. Gen. Stat. \u00a7 20-219.2(a) (2005)).\nAccordingly, plaintiff failed to establish a prima facie case of unfair and deceptive trade practices and the trial court properly granted summary judgment to defendants on this issue.\nPlaintiff next argues that the trial court erred by granting summary judgment in favor of defendants with regard to plaintiffs claim for malicious prosecution. Again, we disagree.\nTo prove a claim for malicious prosecution, a plaintiff must establish four elements: (1) the defendant initiated the earlier proceeding; (2) malice on the part of the defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff.\nNguyen v. Burgerbusters, Inc., 182 N.C. App. 447, 450, 642 S.E.2d 502, 505 (2007) (citations and quotations omitted).\n\u201c[I]t cannot be said that one who reports suspicious circumstances to the authorities thereby makes himself responsible for their subsequent action, . . . even when . . . the suspected persons are able to establish their innocence.\u201d Id. at 450, 642 S.E.2d at 506 (citations and quotations omitted). \u201cHowever, where it is unlikely there would have been a criminal prosecution of [a] plaintiff except for the efforts of a defendant, this Court has held a genuine issue of fact existed and the jury should consider the facts comprising the first element of malicious prosecution.\u201d Becker v. Pierce, 168 N.C. App. 671, 675, 608 S.E.2d 825, 829 (2005) (citations and quotations omitted). Defendants did contact the Raleigh Police regarding the stolen boot, and it is unlikely that the Raleigh Police would have known about the stolen boot without defendants\u2019 actions, thus satisfying the first element of malicious prosecution.\nHowever, plaintiff fails to satisfy the second element of malicious prosecution, malice. \u201c \u2018Malice\u2019 in a malicious prosecution claim may be shown by offering evidence that defendant \u2018was motivated by personal spite and a desire for revenge\u2019 or that defendant acted with \u2018reckless and wanton disregard\u2019 for plaintiffs\u2019 rights.\u201d Id. at 676, 608 S.E.2d at 829 (quoting Moore v. City of Creedmoor, 345 N.C. 356, 371, 481 S.E.2d 14, 24 (1997)) (additional citation omitted). \u201cIn an action for malicious prosecution, the malice element may be satisfied by a showing of either actual or implied malice. Implied malice may be inferred from want of probable cause in reckless disregard of the plaintiff\u2019s rights.\u201d Nguyen, 182 N.C. App. at 452, 642 S.E.2d at 506-07 (citations, quotations, and alterations omitted). In this case, once defendants recovered their boot, they informed the Raleigh Police that they had no further desire to press charges. The Raleigh Police proceeded with the misdemeanor larceny charge on their own steam, not defendants\u2019. Morever, both defendants and the Raleigh Police had probable cause to believe that plaintiff had committed misdemeanor larceny. He took defendants\u2019 property, and carried it away without defendants\u2019 consent, and demonstrated his intent to deprive defendants of the property permanently when he told the investigating officer that defendants could \u201cbid on it on eBay like everybody else . . . .\u201d See State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982) (listing the elements of larceny). Accordingly, we find neither actual nor implied malice on the part of defendants.\nWe affirm the order of the trial court.\nAffirmed.\nChief Judge MARTIN and Judge McCULLOUGH concur.\n. According to plaintiff\u2019s affidavit, plaintiff was only joking and had never put it on eBay or considered putting it on eBay.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Frank S. Kirschbaum, plaintiff, pro se.", "McDaniel & Anderson, L.L.P., by William E. Anderson, for defendant McLaurin Parking Company.", "Cranfill, Sumner & Hartzog, LLP, by Dan M. Hartzog, for defendant Quantum Support, Inc." ], "corrections": "", "head_matter": "FRANK S. KIRSCHBAUM, Plaintiff v. McLAURIN PARKING COMPANY; McLAURIN MANAGEMENT ASSOCIATES, INC.; QUANTUM SUPPORT, INC., Defendants\nNo. COA07-385\n(Filed 19 February 2008)\n1. Trespass\u2014 against personal property \u2014 booting of car\nThe trial court did not err by granting summary judgment for defendants on a trespass against personal property claim arising from the booting of plaintiffs car in a private parking lot. Defendants were privileged to attach a boot to plaintiffs car to protect their right to exclusive possession of the lot.\n2. Damages and Remedies\u2014 booting of car \u2014 attempt at removal\nThe trial court did not err by granting summary judgment for defendants on a claim for damages to personal property arising from the booting of plaintiffs car. Defendants were within their rights to boot the car, and plaintiff inflicted the damage on his car himself by resorting to a bludgeon rather than a legal remedy.\n3. Unfair Trade Practices\u2014 booting of car \u2014 summary judgment\nSummary judgment was correctly granted for defendants on an unfair and deceptive trade practices claim arising from the booting of plaintiffs car in a private parking lot.\n4. Malicious Prosecution\u2014 booting of car \u2014 taking off boot\u2014 malice not shown\nSummary judgment was correctly granted for defendants on a claim for malicious prosecution arising from plaintiffs car being booted in a private parking lot. Plaintiff did not show malice: defendants had no desire to press charges once the boot was recovered, the police department proceeded on its own in proceeding with a misdemeanor larceny charge, and there was probable cause to believe that defendant had committed larceny in taking the boot.\nAppeal by plaintiff from an order entered 18 December 2006 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 29 October 2007.\nFrank S. Kirschbaum, plaintiff, pro se.\nMcDaniel & Anderson, L.L.P., by William E. Anderson, for defendant McLaurin Parking Company.\nCranfill, Sumner & Hartzog, LLP, by Dan M. Hartzog, for defendant Quantum Support, Inc." }, "file_name": "0782-01", "first_page_order": 812, "last_page_order": 820 }