Rachuy v. Pauly

• Decision Date: 13 January 2014
• Docket Number: A13-0393,A13-0394
• Court: Minnesota Court of Appeals
• Parties: Gale A. Rachuy, petitioner, Appellant, v. Jeanine Pauly, et al., Respondents, Duluth Police Department Property Room, Respondent

Gale A. Rachuy, petitioner, Appellant, v. Jeanine Pauly, et al., Respondents,Duluth Police Department Property Room, Respondent

A13-0393

A13-0394

STATE OF MINNESOTA IN COURT OF APPEALS

Filed January 13, 2014

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Minnesota Financial Crimes Task Force,

Defendant (A13-0394).

Affirmed

Larkin, Judge

St. Louis County District Court

File Nos. 69DU-CV-12-528, 69DU-CV-12-1508

Gale A. Rachuy, Oakdale, Louisiana (pro se appellant)

M. Alison Lutterman, Nathan N. LaCoursiere, Assistant City Attorneys, Duluth, Minnesota (for respondents Duluth Police Department Property Room and Jeanine Pauly)

Leslie E. Beiers, Assistant St. Louis County Attorney, Duluth, Minnesota (for respondent Mark Rubin)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Chutich, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges the district court's award of summary judgment to respondents on appellant's consolidated petition for return of seized property and civil complaint alleging common law theft, conversion, and illegal search. We affirm.

FACTS

The events giving rise to these consolidated actions arose out of two separate incidents and a series of ongoing investigations by Minnesota and Wisconsin police and the Federal Bureau of Investigation (FBI). On October 13, 2006, officers from the Duluth Police Department were dispatched to Woodruff Lumber. The police determined that a dispute existed between Woodruff Lumber and appellant Gale A. Rachuy regarding a shipment Rachuy allegedly promised to Woodruff but did not deliver. P.G., who was identified as an employee of Rachuy's, was on site to retrieve a separate load of lumber delivered some time previously by Rachuy. A fax purporting to be from the law office of Terry Duggins discussed both the shipment that was not delivered, as well as the lumber P.G. was attempting to retrieve. According to Officer Jeanine Pauly, the fax did not correctly identify the amount of lumber P.G. asserted he had been sent to retrieve.

Officer Pauly, who was investigating an alleged pattern of criminal behavior by Rachuy, arrived on the scene. Because Rachuy was being investigated for other scams involving lumber, and because the discrepancies on the fax made her suspicious that Rachuy was attempting to scam Woodruff, she determined that the lumber allegedly belonging to Rachuy should remain at Woodruff pending resolution of the dispute.

While at Woodruff, P.G. received a phone call from Rachuy, who spoke to Officer Pauly. Officer Pauly told Rachuy the lumber P.G. had been sent to retrieve would remain at Woodruff. Next, Officer Pauly received a phone call from an individual identifying himself as Terry Duggins. Duggins stated that he was Rachuy's attorney, but Officer Pauly was skeptical about his identity because Rachuy's criminal history involved impersonating an attorney. Officer Pauly reiterated that the lumber would remain at Woodruff until she was able to speak to Rachuy in person. Because P.G. did not have a valid driver's license, the truck he arrived in was towed.

On September 2, 2010, Duluth Police, including Officer Pauly, assisted the FBI in arresting Rachuy on a federal warrant for four counts of interstate trafficking of stolen property involving the purchase of vehicles with bad checks. Officer Pauly had prepared a search-warrant application based on information provided by the FBI and the ongoing investigations. The FBI observed Rachuy staying at a motel with a Dodge Durango that did not have license plates. The FBI then arrested Rachuy. Officer Pauly arrived on the scene and recorded the vehicle identification number (VIN) from the Durango. She added that information to the search-warrant application, which was subsequently approved by a judge. The officers on the scene then searched Rachuy's motel room and seized a number of items, including the Durango. Officer Pauly searched the Durango, which was being held in secure storage.

In February 2012, Rachuy filed a petition for return of seized property pursuant to Minn. Stat. § 626.04 (2012). Rachuy included an itemized list of property to be returned, described as follows: (1) "Lumber seized in 2006 [b]y Investigator Jeanine Pauly atWoodruff," (2) "Items 1-102 in Duluth Police Dept. seized in Superior and transferred to Duluth Police Dept. (DPD) by [Officer] Pauly or others," and (3) "Items seized by [Officer] Pauly on Sept. 2, 2010 (83-102) for FBI." The petition names Jeanine Pauly and the Duluth Police Department Property Room as the custodians of the property.

The district court allowed Rachuy to bring a separate action pursuant to Minn. Stat. §§ 604.14, 626.21 (2012), alleging civil theft and conversion, and challenging the September 2, 2010 search. The complaint names as defendants Jeanine Pauly, the Duluth Police Department Property Room, Sergeants Wilson and Ceynowa,¹ the City of Duluth, Mark S. Rubin, and the Minnesota Financial Crimes Task Force. The district court heard the two actions together, and all defendants moved to dismiss the complaints.

The district court treated the motions to dismiss as motions for summary judgment and granted the motions as to all defendants except with regard to three items that the City of Duluth admitted were mistakenly sold while in its custody. The district court ordered the city to reimburse Rachuy for those items so long as Rachuy could establish that he was the owner of the property. Rachuy filed a motion to vacate summary judgment, which the district court denied. These consolidated appeals follow.

DECISION

I.

Rachuy alleges that the defendants committed civil theft and conversion of his property. The district court granted summary judgment in favor of all defendants on histheft and conversion claims, except to the extent that it ordered the City of Duluth to reimburse Rachuy for property mistakenly sold by its agents, so long as Rachuy provides proof of the value and ownership of those items. Rachuy asserts that genuine issues of material fact preclude summary judgment.²

When reviewing an appeal from summary judgment, an appellate court asks two questions: "(1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

There is no genuine issue of material fact "when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). "[T]he party resisting summary judgment must do more than rest on mere averments." Id. Reviewing courts apply a de novo standard of review to a grant of summary judgment and view the evidence in the light most favorable to thenonmoving party. Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008).

Conversion occurs where one willfully interferes with the personal property of another "without lawful justification," depriving the lawful possessor of "use and possession." DLH, Inc., 566 N.W.2d at 71 (quotation omitted). The elements of common law conversion are: (1) plaintiff holds a property interest and (2) defendant deprives plaintiff of that interest. Olson v. Moorhead Country Club, 568 N.W.2d 871, 872 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997). Minn. Stat. § 604.14 provides that "[a] person who steals personal property from another is civilly liable to the owner of the property for its value when stolen plus punitive damages of either $50 or up to 100 percent of its value when stolen, whichever is greater."

Officer Jeanine Pauly

Rachuy alleges that Officer Pauly stole Rachuy's lumber from Woodruff and those items seized in Wisconsin by the Superior Police Department or the Douglas County Sheriff (numbered 1-82 in his petition).³ The district court granted Officer Pauly summary judgment, concluding that there was no evidence that Officer Pauly seized or possessed the lumber, acted improperly with respect to the items transferred from Wisconsin, or improperly transported any of the items in question from Wisconsin to Minnesota.

Regarding the Woodruff incident, Officer Pauly's affidavit and the police reports show that she responded to a property dispute and acted to maintain the status quo in an uncertain situation. The record is also clear that Officer Pauly never took possession of the lumber. She merely instructed P.G. that it would remain where it was until the dispute was resolved. The district court therefore did not err by concluding that there was no evidence that Officer Pauly seized or possessed the lumber.

Regarding items 1-46 seized by the Superior Police Department and allegedly transported to Minnesota, Rachuy presents bare accusations to support his claim that Officer Pauly acted without lawful justification. See DLH, Inc., 566 N.W.2d at 71 (defining conversion to require that the act be done without lawful justification). This is insufficient. See id. ("[T]he party resisting summary judgment must do more than rest on mere averments."). Moreover, Rachuy did not challenge the theft or conversion of items 47-82 in his complaint. We therefore deem his argument regarding those items waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that an appellate court generally will not consider matters not argued to and considered by the district court). In sum, the district court did not...