Cofield v. Randolph County Com'n, 95-6026

Decision Date06 August 1996
Docket NumberNo. 95-6026,95-6026
Citation90 F.3d 468
Parties30 UCC Rep.Serv.2d 374 Roy L. COFIELD, Rita F. Cofield, Plaintiffs-Appellants, v. RANDOLPH COUNTY COMMISSION, a governmental entity; Randolph County Sheriff's Department, a governmental entity, Defendants, Ricky Hancock, an employee of the Randolph County Commission and/or Randolph County Sheriff's Department; Danny Belyeu Chevrolet, Inc.; Danny Belyeu, individually and in his capacity as President of Danny Belyeu Chevrolet; Scott Evans, an employee of Danny Belyeu Chevrolet, Inc., and/or Danny Belyeu; Fictitious Defendant(s), A, B, or C, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

John G. Smith, Schmitt & Harper, Steven F. Schmitt, Tallahhee, AL, for appellants.

Kendrick E. Webb, Webb & Eley, P.C., Bart Harmon, William Robert Chandler, Montgomery, AL, for Ricky Hancock.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge and GOODWIN *, Senior Circuit Judge.

TJOFLAT, Chief Judge:

I.

The controversy in this case stems from an automobile transaction between a Chevrolet dealership and husband and wife buyers. The buyers, Roy and Rita Cofield, were purchasing a new Chevrolet Blazer from Danny Belyeu Chevrolet. As part of the purchase price, the Cofields traded in to the dealership a car, a pick-up truck, and a camper trailer. The transaction collapsed when the camper turned out to be a 1978 model, rather than a 1987 model (which is how the camper was described in the paperwork on the sale)--and, thus, was of considerably less value than the dealership expected. 1

Employees of the dealership discovered the mistake the same day the deal was closed. Danny Belyeu, the owner of the dealership, decided to cancel the transaction by "repossessing" the Blazer and returning to the Cofields the consideration (the camper, automobile, and pick-up truck) they had given for it. Belyeu was, however, concerned that the Cofields might forcibly resist the repossession of the Blazer. He therefore instructed his employees to contact the local sheriff's office before proceeding with the repossession. They did so, and Deputy Sheriff Ricky Hancock accompanied two Belyeu employees, Scott Evans and John Bullock, to the Cofield residence.

Bullock's role was to take the Blazer back to the dealership; Hancock accompanied Evans to the front door of the Cofield house. The parties dispute whether the Blazer had left the premises before or after Deputy Hancock rang the Cofields's doorbell. There is no dispute, however, that the Cofields objected to the removal of the Blazer from their premises.

Following the dealership's repossession of the Blazer, the Cofields brought this action against the dealership, Danny Belyeu, Scott Evans, the Randolph County Commission, the Randolph County Sheriff's Department, and Deputy Hancock. Their complaint contained ten counts. 2 Only a portion of count I, brought against Deputy Hancock, is at issue in this appeal. In that portion, the Cofields sought money damages against Hancock in his individual capacity under 42 U.S.C. § 1983, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, they alleged that Hancock effected a "seizure" of their automobile in violation of the Fourth Amendment and deprived them of "procedural due process" in violation of the Fourteenth Amendment. 3

Deputy Hancock's answer plead the defense of qualified immunity with respect to the constitutional claims. The district court granted Hancock summary judgment on that ground and dismissed count I. Because this left no federal claims pending against any defendant, the court dismissed without prejudice the Cofields' pendent state law claims against Hancock and the other defendants.

The Cofields appeal the granting of summary judgment on the Fourth Amendment and Due Process claims. We review the district court's grant of summary judgment de novo. See Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1377 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995).

II.

"The law attending qualified immunity is well-settled." Leeks v. Cunningham, 997 F.2d 1330, 1333 (11th Cir.1993). Government officials enjoy immunity from civil damages provided "their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person should have known." Id., citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2728, 73 L.Ed.2d 396 (1982). "For a 'right' to be clearly established, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Rodgers v. Horsley, 39 F.3d 308, 310 (11th Cir.1994), citing Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

Appellants theorize that the taking of the Blazer was clearly wrongful insofar as it contravened state law (i.e., that the dealership was not entitled to repossess the vehicle because the appellants had not defaulted under the sales contract). Moreover, they claim, Hancock knew the dealership was not entitled to repossess, he knew the dealership was nevertheless planning to repossess, and he helped them do so. They argue that Hancock thereby effected a "seizure" of their property in violation of the Fourth Amendment. Additionally, they argue, his participation in the taking converted what would otherwise have been an instance of "self-help repossession" into a levying of property by a law enforcement officer without a writ of attachment, in violation of the procedural component of the Due Process Clause.

Appellant's argument fails at the first step. The Alabama Code provides that "[u]nless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace...." Ala.Code § 7-9-503 (1993). The Code does not define the word "default," leaving this to the parties to the security agreement and to the common law. See 4 James J. White & Robert S. Summers, Uniform Commercial Code § 34-2 (4th ed. 1995). In the absence of a particular definition adopted by the parties, the ordinary meaning of "default" is "failure to pay." See 9A Ronald A. Anderson, Uniform Commercial Code § 9-501:27 (3d ed. rev. 1994). We think it self-evident that failure of consideration, which is what occurred in this case, constitutes failure to pay.

Appellants point out that the "Sales Contract," which contains the standard default and repossession clauses, does not itself include any representation (by them) as to the age of the camper, and that the "Vehicle Invoice," which does contain such a representation, does not include any default or repossession clauses. The two documents, they argue, are wholly separate. We do not address the merits of this argument. Failure of consideration can constitute a default and can thereby entitle a creditor to repossess the collateral. Accordingly, it could not have been "clear" to Deputy Hancock that the repossession was "wrongful." 4 As noted, then, appellants' argument fails at the first step; Hancock could not have known the taking of the Blazer was wrongful.

Appellants also suggest that a deputy sheriff simply cannot be present during an instance of self-help repossession. Even if a repossession is lawful, they argue, if a deputy sheriff is present, that repossession becomes a "seizure" by the state. Moreover, they contend, if he is present the repossession is no longer an instance of "self help" and, accordingly, must be preceded by judicial process. Appellants have pointed us to no cases, and we have found no cases, that support either proposition. Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), on which appellants rely heavily, is readily distinguishable. In Soldal, deputy sheriffs assisted in a forcible eviction that was patently unlawful. 5 Id. at 56-60, 113 S.Ct. at 541-42.

Finally, we think it plain that an officer's mere presence during a lawful repossession is of no moment. Indeed, arguably an officer's "mere presence to prevent a breach of the peace" would not even constitute state action sufficient to give the court subject matter jurisdiction. See Booker v. City of Atlanta, 776 F.2d 272, 274 (11th Cir.1985). While our cases suggest that state action might be present if an officer were to facilitate a repossession, see id., see also Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 513 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980), the Cofields's own testimony places the Blazer off, or exiting, the premises by the time they reached their front door to contest the repossession. The implication is that the repossession had been completed before the Cofields had any contact with Hancock. 6

III.

It is anything but clear that the repossession effected by Danny Belyeu Chevrolet was unlawful. Moreover, according to appellant's own version of the facts, the repossession appears to have been completed prior to Hancock's involvement. Finally, we have found no precedent clearly holding that an officer's mere presence at (or after) a lawful instance of self-help repossession can amount to a violation of the Fourth and Fourteenth Amendments. Thus we conclude that Hancock could not have known his actions might violate anyone's constitutional rights. He is entitled to qualified immunity.

AFFIRMED.

GOODWIN, Senior Circuit Judge, dissenting:

When reviewing a summary judgment, we must resolve all reasonable inferences of fact in favor of the nonmoving party. Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988). Because I believe a question of material fact exists, (whether Hancock was there merely to "keep the peace"); and because the law was clearly established that a sheriff without...

To continue reading

Request your trial
25 cases
  • Marcus v. McCollum
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 30 Diciembre 2004
    ...Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir.1999). This view is echoed among the circuits. See, e.g., Cofield v. Randolph County Comm'n, 90 F.3d 468, 471 (11th Cir.1996) ("state action might be present if an officer were to facilitate a repossession"); Harris v. City of Roseburg, 664 F.2d......
  • Open Inns, Ltd. v. Chester County Sheriff's Dept., CIV. A. 97-4822.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 20 Octubre 1998
    ...a private party engaged in self-help repossession. These cases are readily distinguishable. For example, in Cofield v. Randolph County Commission, 90 F.3d 468 (11th Cir.1996), a divided panel of the Eleventh Circuit held that the "officer's mere presence during a lawful repossession is of n......
  • Thomas v. Cohen, 01-5088.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 23 Agosto 2002
    ...prohibited in the state of Kentucky, and that the eviction they facilitated was therefore "patently unlawful." Cofield v. Randolph County Comm'n, 90 F.3d 468, 471 (11th Cir.1996); cf. Havertisick, 32 F.3d at 995 (distinguishing between officers engaged in passive peace-keeping conduct durin......
  • Open Inns, Ltd. v. Chester County Sheriff's Dept., CIVIL ACTION NO. 97-4822 (E.D. Pa. 10/20/1998), CIVIL ACTION NO. 97-4822.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 20 Octubre 1998
    ...a private party engaged in selfhelp repossession. These cases are readily distinguishable. For example, in Cofield v. Randolph County Commission, 90 F.3d 468 (11th Cir. 1996), a divided panel of the Eleventh Circuit held that the "officer's mere presence during a lawful repossession is of n......
  • Request a trial to view additional results
2 books & journal articles
  • Constitutional Civil Law - Albert Sidney Johnson
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-4, June 1997
    • Invalid date
    ...First Amendment rights. 86 F.3d at 1093-94. Accordingly, the Eleventh Circuit followed Beauregard as a binding precedent. Id. at 1094. 28. 90 F.3d 468 (11th Cir. 1996). 29. Id. at 471. 30. 94 F.3d 1528 (11th Cir. 1996). 31. Id. at 1537. 32. Id. at 1533-34 (noting comparison with Anderson v.......
  • Jessica Priselac, the Requirement of State Action in Alien Tort Statute Claims: Does Sosa Matter?
    • United States
    • Emory University School of Law Emory International Law Reviews No. 21-2, December 2007
    • Invalid date
    ...No. 107 v. Irvis, 407 U.S. 163 (1972)). 140 Id. 141 Id. 142 Id. 143 Id. 144 Id. at 1249-50 (citing Cofield v. Randolph County Comm'n, 90 F.3d 468, 471 (11th Cir. 1996)). 145 Aldana, 416 F.3d at 1249. 146 See, e.g., Chavez v. Carranza, 413 F. Supp. 2d 891, 899 (W.D. Tenn. 2005); Mujica v. Oc......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT