Tuesday, February 19, 2008, 11:45 AM

Raleigh Lawyer Loses Fight Over Booted Car

Today the Court of Appeals (COA) rejected a tort suit brought pro se by a Raleigh lawyer whose unauthorized parking resulted in the booting of his car and a larceny prosecution against him. The case is Kirschbaum v. McLaurin Parking Co. The N&O has a story on the case here.

Mr. Kirschbaum had a two-hour lunch at Caffe Luna in dowtown Raleigh. He parked his Toyota Land Cruiser in a leased space in a private parking lot managed by McLaurin Parking. Signs by the lot warned that a permit to park was required, that unauthorized parking would result in towing, that Caffe Luna patrons could park there only after 6:00 p.m., and that nearby public parking lots were available for afternoon parking.

When Mr. Kirschbaum returned to his car after lunch, he found it booted. Rather than pay McLaurin's agent a $50 fee to remove the boot, Mr. Kirschbaum removed the booted wheel and, after installing a spare tire, drove off with it. McLaurin, owner of the boot, dispatched the police to Mr. Kirschbaum's home to fetch it. He told the police that McLaurin could bid for it on e-Bay. Later he decided to bring the boot to the police (after he removed the boot himself from the wheel, causing damage to the wheel). The police returned the boot to McLaurin, which declined to press charges. Nonetheless, the police decided to prosecute Mr. Kirschbaum for misdemeanor larceny, contending he stole the boot. At the close of the State's evidence at trial, charges against Mr. Kirschbaum were dismissed.

He then proceeded to file a lawsuit against McLaurin for trespass to chattel, malicious prosecution, and unfair trade practices, based on the damage he caused to the wheel by removing the boot and the larceny prosecution. The COA rejected the claims. With respect to trespass to chattel, the Court remarked that the right of a property owner to the exclusive use and enjoyment of his private property "does not hold true with respect to private parking lots." McLaurin was privileged to attach that boot to his car to protect its right to exclusive possession of the parking lot.

As for malicious prosecution, the COA observed that "defendants and the Raleigh Police had probable cause to believe that plaintiff had committed misdemeanor larceny. He took defendants' property, and carried it away without defendants' consent, and demonstrated his intent to deprive defendants of the property permanently when he told the investigating officer that defendants could 'bid on it on eBay like everybody else . . . .'"

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