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Zitta v. Graham

United States District Court, D. Vermont

January 24, 2014


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[Copyrighted Material Omitted]

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For Allan P. Zitta, Tracy Zitta, Plaintiffs: Joseph F. Obuchowski, Jr., Joseph F. Obuchowski and Associates, Burlington, VT.

For Andrew Graham, Alan F. Buck, Richmond, Town of, Defendants: Colin K. McNeil, Esq., Nancy G. Sheahan, McNeil, Leddy & Sheahan, P.C., Burlington, VT.

For ENE Evaluator, ENE Evaluator: Jerome F. O'Neill, Esq., Gravel & Shea PC, Burlington, VT.

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Honorable J. Garvan Murtha, United States District Judge.

I. Introduction

This is a case about a fork lift truck known as the " Lull." Defendants Andrew Graham, Alan F. Buck, and the town of Richmond have all moved for summary judgment. (Docs. 32, 33.) Plaintiffs Allan and Tracy Zitta have opposed the motion and Defendants have filed reply memoranda. (Docs. 37, 38, 43, 44.) For the following reasons, Defendants' motions are GRANTED and this action is DISMISSED.

II. Factual Background[1]

Tracy and Allan Zitta have lived at 158 Wes White Hill Road in Richmond, Vermont

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since November 2010. (Doc. 8 at 1; Doc. 32-3 at 4.) Before moving in, the Zittas hired Charles Waterman, Mr. Zitta's " friend" from Seabrook, Massachusetts, to build a barn on the property. (Doc. 32-2 ¶ ¶ 1-3; Doc. 38-17 at 2.) Waterman lived in the Zitta's house during construction of the barn from August to November 2010, and the Zittas moved in after its completion. (Doc. 32-3 at 4.) The Zittas then hired Waterman to build an addition to their house as well. (Doc. 32-2 at ¶ 3.) From July 2011 to January 2012, Waterman lived in his camper on the Zittas' property and worked on the addition. Id.

On March 23, 2012, when Allan Zitta was in Arizona at a shooting competition, Waterman knocked on the Zittas' door at approximately 7:30 p.m. Id. ¶ 4. Mrs. Zitta answered the door and the two spoke about scaffolding that Waterman had used to build the addition and remained on the property. Id. ¶ ¶ 5-6. Waterman told Mrs. Zitta he intended to pick up the scaffolding, but Mrs. Zitta said she did not think he owned it. Id. ¶ 6. Waterman said he did own the scaffolding along with the " Lull," a fork lift truck on the property. Id. Mrs. Zitta responded that he did not own the Lull, either. (Doc. 32-3 at 14.) Waterman then told Mrs. Zitta he needed to get paperwork in his truck that the Zittas might need for tax reasons, and would return in a few minutes -- apparently because he parked his truck on Wes White Hill Road, not in the Zittas' driveway. (Doc. 32-2 at ¶ 7; Doc. 32-3 at 29.)

After about 10 minutes, Mrs. Zitta went outside to look for Waterman and saw him walking toward the scaffolding. (Doc. 32-2 ¶ ¶ 8-9.) At that point, Mrs. Zitta returned to the house called her husband in Arizona, but did not reach him. Id. ¶ 9. She then returned outside and saw Waterman driving the Lull toward the scaffolding. Id. ¶ 10. Waterman picked up the scaffolding with the Lull, moved it to a flat location, and cut it in half with a power saw. Id.; Doc. 32-3 at 19. Mrs. Zitta returned to the house and was able to reach her husband on the phone. (Doc. 32-2 ¶ 11.) She then went back outside and told Waterman he should not be there when Mr. Zitta was away. Id. ¶ ¶ 12-13. Waterman told her to go ahead and call the police because he had already done so. Id. ¶ 13. Mrs. Zitta then called the police and spoke with Officer Andrew Graham, who was processing a person for driving under the influence (" DUI" ). Id. ¶ ¶ 15-17. Officer Graham said to Mrs. Zitta, " I know [Waterman] is there. I already know the story. And besides, you owe him money." Id. ¶ ¶ 19-20. Officer Graham had learned this information from speaking with Waterman on the phone. Id. ¶ 20. Officer Graham then said he would come to her house as soon as he could. Id. ¶ 19.

Waterman then drove the Lull onto Wes White Hill Road and loaded the scaffolding onto a trailer attached to his truck. Id. ¶ 23. He then prepared the trailer to load the Lull on it as well. Id. ¶ 24. Mrs. Zitta chased him on foot and got into the Lull to try and drive it back onto her property, but Waterman grabbed the Lull's keys and locked himself in his truck. Id. ¶ 25. Waterman then called Officer Graham back and told him Mrs. Zitta was " going ballistic" on him. Id. ¶ 26. Officer Graham told Waterman to stay in his truck.

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Id. Mrs. Zitta also called Officer Graham, who similarly told her to stay in the house until he arrived. Id. ¶ 29. Mrs. Zitta returned to her house and again spoke with her husband on the telephone. Mr. Zitta asked her to write down Waterman's license plate numbers, and she went back outside and did so. Id. ¶ 30.

At approximately 9:15 p.m., as Mrs. Zitta was returning to the house, Officer Graham arrived along with Vermont State Trooper Phillip Glanz. Id. ¶ 31. Mrs. Zitta told the officers that Waterman was stealing the Lull and said he must have cut a chain that secured the Lull in order to drive it off the property. Id. ¶ 32. Waterman denied cutting any chain and told Officer Graham he owned the Lull.[2] Id. ¶ 35. He also showed Officer Graham a bill of sale stating that Dan Gallant sold Waterman a Lull for $12,000. Id. ¶ 36. Officer Graham determined that the serial number on the bill of sale and the serial number on the Lull matched. Id. He then called Gallant, who said that Waterman had indeed purchased the Lull. Id. Officer Graham asked Mrs. Zitta to produce any documentation relating to ownership of the Lull, but she was unable to do so. Id. ¶ 39.

Mr. Zitta then called Mrs. Zitta's cell phone and asked to speak to Officer Graham. Id. ¶ 40. When Mr. Zitta told Officer Graham that Waterman did not own the Lull, Officer Graham asked Mr. Zitta if he had any documentation relating to ownership of the Lull. Id. ¶ 41. Mr. Zitta said that he did not have any that he could " touch right now" and his wife would not be able to find any paperwork either. Id. Officer Graham denied Mr. Zitta's request to impound the Lull. Id. ¶ 41. The parties dispute whether Waterman's purported bill of sale constituted actual " evidence of ownership," [3] but in any event, it was at this point that Officer Graham decided the situation was a civil, not criminal matter. Id. ¶ ¶ 42-43; Doc. 40 at 1; Doc 32-5 ¶ 19. Based on what Waterman had showed him, Officer Graham believed (and the Zittas dispute) that he did not have authority to seize the ...

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