Ruscitti v. Sackheim

Decision Date29 August 1991
Docket NumberNo. 90CA0846,90CA0846
Citation817 P.2d 1046
PartiesMaria RUSCITTI, Plaintiff-Appellant, v. Gilbert M. SACKHEIM and Day and Sackheim, Defendants-Appellees. . II
CourtColorado Court of Appeals

Jack Kintzele, Denver, for plaintiff-appellant.

Robert C. Clarke, Boulder, for defendants-appellees.

Opinion by Judge ROTHENBERG.

Plaintiff, Maria Ruscitti, appeals the summary judgment entered in favor of defendants, Gilbert M. Sackheim and Day and Sackheim (a law partnership), upon Ruscitti's claims for conversion, outrageous conduct, and deprivation of property in violation of 42 U.S.C. § 1983 (1988). We affirm.

The relevant facts are undisputed. Sackheim, an attorney and a principal of the law firm of Day and Sackheim, represented Carl Nukols in a civil action against Emiliano and Linda Ruscitti, the husband and daughter of plaintiff Maria Ruscitti. In September 1987, Sackheim obtained a $35,156 default judgment for Nukols against Emiliano and Linda Ruscitti. Thereafter, Sackheim began execution proceedings on Nukol's behalf.

Sackheim then discovered the following: (1) Emiliano Ruscitti operated a grocery store known as the Sunrise Market; (2) since 1985, Emiliano Ruscitti has been listed on a Colorado Department of Revenue trade name registration as sole owner of this business; and (3) as sole owner, Emiliano Ruscitti applied for and received a sales tax license and alcoholic beverage license for the Sunrise Market which license was current in 1988.

In reliance upon this information, Sackheim caused a writ of execution to be issued, and on November 12, 1988, approximately $3,300 was seized by the sheriff from the Sunrise Market's cash registers.

Following the seizure, Maria Ruscitti filed this action for conversion, outrageous conduct, and violation of her property rights under 42 U.S.C. § 1983. She claims that she has a co-ownership interest in the Sunrise market and also claims damages caused by seizure of her share of the property from the cash registers.

Defendants moved for summary judgment, contending that Maria Ruscitti had no demonstrable ownership rights in the property and, therefore, could not be a victim of conversion. In response to defendants' motion for summary judgment, Ruscitti filed documentation which, the trial court found, did raise a genuine issue of fact as to whether she indeed was a co-owner of the Sunrise Market.

Nevertheless, despite the existence of that factual issue, the court determined that summary judgment for defendants was proper since the seizure was conducted pursuant to a valid judgment and execution. The trial court also entered summary judgment against Ruscitti on her claims of outrageous conduct and violation of 42 U.S.C. § 1983.

I.

Ruscitti's main contention on appeal is that since the trial court found a genuine issue of fact as to her co-ownership of the Sunrise Market, entry of summary judgment was improper. We disagree.

The purpose of summary judgment is to permit parties to pierce the formal allegations of the pleadings and to save the time and expense connected with the trial. Summary judgment is a drastic remedy and may properly be entered only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District, 689 P.2d 594 (Colo.1984).

In determining whether summary judgment is proper, the trial court must resolve all doubts against the moving party. Jones v. Dressel, 623 P.2d 370 (Colo.1981).

Once the party moving for summary judgment has met the initial burden, the burden shifts to the non-moving party to establish that there is a triable issue of fact. Continental Air Lines v. Keenan, 731 P.2d 708 (Colo.1987). Further, the non-moving party must demonstrate that a real controversy exists.

Here, the trial court found that even if Ruscitti was a co-owner of the market, she could not recover because defendants' conduct did not constitute conversion as a matter of law. Thus, the issue of fact was immaterial.

II.

Section 13-52-102(1), C.R.S. (1987 Repl.Vol. 6A) states that:

"all goods and chattels ... of every person against whom any judgment is obtained ... are liable to be sold on execution...."

Personal property not owned by the judgment debtor is not subject to execution to satisfy the judgment. See Brink v. McNeil, 761 P.2d 271 (Colo.App.1988).

Section 13-55-102, C.R.S. (1987 Repl.Vol. 6A) gives a judgment debtor the right to a prompt hearing after execution to determine the validity and effect of any claimed exemptions. A person who claims to be the owner of seized property but who is not the judgment debtor may intervene in the proceeding and have his or her exemption claims determined promptly by the court. Cf. Brink v. McNeil, supra.

In sum, the statutory scheme which allows levy or seizure of personal property under a writ of execution also prevents undue interference with personal property by making available a prompt judicial hearing to determine claimed exemptions. Ruscitti did not avail herself of the remedy afforded by § 13-55-102.

The essence of Ruscitti's argument is that since her interest in the Sunrise Market could not be used to satisfy her husband's judgment creditor absent a statute creating liability, Sackheim's actions constituted conversion. In response, Sackheim contends that since all of his actions were lawful, they could not constitute conversion.

Although no reported Colorado case has faced this exact issue, other states have held that the seizure of jointly held personal property to secure the debt of one joint owner pursuant to a lawful writ of execution does not in itself constitute conversion.

In Woodring v. Jennings State Bank, 603 F.Supp. 1060 (D.Neb.1985), a federal district court, interpreting Nebraska law, noted that conversion lies only for serious interference with possessory interests in personal property; thus, it held that the attachment of one owner's interest was not conversion as to the other owner's interest. Rather, as an Oregon court stated, it "is merely one of the disagreeable incidents of their joint ownership." Sharp v. Johnson, 38 Or. 246, 249, 63 P. 485 (1901). Accord Conolley v. Power, 70 Cal.App. 70, 232 P. 744 (1924); Quaranto v. Silverman, 345 Mass....

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3 cases
  • Antolovich v. Brown Group Retail, Inc.
    • United States
    • Colorado Court of Appeals
    • August 23, 2007
  • D.R. Horton, Inc. v. D & S Landscaping, LLC, No. 07CA0890.
    • United States
    • Colorado Court of Appeals
    • June 26, 2008
    ...forth specific facts showing that there is a genuine issue for trial. See C.R.C.P. 56(e); Pinder, 812 P.2d at 649; Ruscitti v. Sackheim, 817 P.2d 1046, 1048 (Colo.App.1991). Unless the moving party meets his burden, the opposing party may, but is not required to submit an opposing affidavit......
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    • United States
    • U.S. District Court — District of Colorado
    • June 19, 2015
4 books & journal articles
  • ARTICLE 52 PROPERTY SUBJECT TO LEVY
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 13 Courts and Court Procedure
    • Invalid date
    ...pursuant to writ of attachment or execution to secure debt of one joint owner does not constitute conversion. Ruscitti v. Sackheim, 817 P.2d 1046 (Colo. App. 1991). Property subject to homestead exemption is exempt from execution and therefore from judgment lien. City Ctr. Nat'l Bank v. Bar......
  • ARTICLE 52
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 13 Courts and Court Procedure
    • Invalid date
    ...pursuant to writ of attachment or execution to secure debt of one joint owner does not constitute conversion. Ruscitti v. Sackheim, 817 P.2d 1046 (Colo. App. 1991). Property subject to homestead exemption is exempt from execution and therefore from judgment lien. City Ctr. Nat'l Bank v. Bar......
  • Rule 56 SUMMARY JUDGMENT AND RULINGS ON QUESTIONS OF LAW.
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
    ...judgment as a matter of law under section (c). Terrell v. Walter E. Heller Co., 165 Colo. 463, 439 P.2d 989 (1968); Ruscitti v. Sackheim, 817 P.2d 1046 (Colo. App. 1991). The function of this rule authorizing summary judgments is to avoid the expense and delay of trials when all facts are a......
  • A Survey of Outrageous Conduct Under Colorado Law: Part Ii
    • United States
    • Colorado Bar Association Colorado Lawyer No. 28-1, January 1999
    • Invalid date
    ...not characterize defendants' conduct as atrocious and utterly intolerable in a civilized community." Id. at 757. Ruscitti v. Sackheim, 817 P.2d 1046 (Colo.App. Defendants "represented [a party] in a civil action against . . . the husband and daughter of plaintiff. . . ." Id. at 1047. Defend......

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