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Weishapl v. Sowers

April 19, 2001

ROBERT WEISHAPL, APPELLANT,
v.
JOSEPH SOWERS, ET AL., APPELLEES.



Before Wagner, Chief Judge, and Farrell, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Wagner, Chief Judge

Appeal from the Superior Court of the District of Columbia

Hon. Frederick H. Weisberg, Trial Judge

Submitted June 10, 1999

Appellant, Robert Weishapl, appeals from summary judgment entered for appellees, Michael Rizzo, Zuckerman Kronstadt, Inc., the District of Columbia (District) and Officer George Awkward of the Metropolitan Police Department (MPD). Weishapl's claims are related to his lease and ownership interest in a restaurant business which failed. In the trial court, he claimed essentially that appellees' wrongful actions interfered with and caused him to lose the business. Against the police, he alleged false arrest and constitutional violations under 42 U.S.C. § 1983, with claims against the District based on respondeat superior. *fn1 The trial court granted summary judgment for Rizzo and Zuckerman Kronstadt, Inc., concluding that there are no issues of material fact in dispute and that Weishapl has no viable or legally cognizable claims against them. Subsequently, the trial court granted summary judgment for Officer Awkward and the District, concluding that Weishapl failed to present facts supporting a claim of false arrest or an unconstitutional seizure of his person or property. On appeal, Weishapl argues that the trial court erred in granting summary judgment for appellees. Specifically, he contends: (1) that evidence that the police precluded him from remaining in his business premises was sufficient to show false arrest; (2) that there is evidence that the police interfered with his possessory interest in property, which he contends will support a claim under § 1983; (3) that he can prevail against Officer Awkward for his negligent failure to intercede on his behalf against his "erstwhile" partner, Joseph Sowers, *fn2 in a dispute over possession of the premises; and (4) that there was evidence of a civil conspiracy, which provides a basis for establishing vicarious liability against Rizzo and Zuckerman Kronstadt, Inc. for the underlying torts committed by Sowers. We conclude that the material facts are undisputed and that the trial court properly granted summary judgment for all appellees.

I. Factual Background

A. Circumstances of the Alleged False Arrest

Weishapl, along with two partners, opened a restaurant at 801 Pennsylvania Avenue, Southeast, in Washington, D.C., called the Blue Penguin. They incorporated as Penguin Enterprises, Inc. in September 1993 and opened the restaurant on November 17, 1993. The lease for the premises was in the name of the corporation and signed by Weishapl as its vice-president on September 17, 1993. The business started experiencing financial difficulties which persisted, and it filed for Chapter 11 bankruptcy (reorganization) in April 1995, ultimately going into Chapter 7 bankruptcy on about June 29, 1995. At the end of April 1995, Weishapl met Joseph Sowers, who offered to assist him with the Blue Penguin as a favor to the person who introduced them. They signed nothing formal, but Sowers agreed to help him through the bankruptcy. Although Sowers appeared to Weishapl to be honest, according to Weishapl, he turned out to be a con-artist who set out to take over his business. Sowers came to the restaurant on a Monday and Tuesday in mid-May. On Wednesday afternoon, Weishapl went home sick and did not return until the next Friday evening. When he returned to work, Weishapl noticed that the downstairs door locks had been changed, although the main door locks had not been. He asked Sowers for a key, and Sowers promised to give him one. After Memorial Day, Weishapl discovered that the corporation's checkbook, which it was required to maintain in connection with the bankruptcy proceeding, was missing. Sowers wrote checks on the account without authorization. Sowers told everyone that he had acquired the business, that he was the owner of the property, and that Weishapl was no longer involved in the business, and according to Weishapl, "[Sowers] made people believe all this." Weishapl testified that Sowers also told the police that he was the rightful owner. Weishapl went to the police station in an attempt to get Sowers out, but the police told him that someone from the management company would have to come down and let them know that he had a valid lease. Weishapl then filed in Superior Court a motion for a temporary restraining order (TRO) against Sowers, but it was denied. *fn3

According to Weishapl's deposition testimony, ten days after Sowers first became involved in his business, Weishapl was prohibited from entering for the first time. He explained:

Well, on June 2nd when I gave [Sowers] the cease and desist order he had the Capitol Hill police meet me there, came out and talked to [the] officer, I don't remember, badge number 92, our [sic] whatever it was, 95. Basically, he went over and talked to them and showed them a piece of paper, which I found out later was an insurance binder because he was going to get insurance on the place. I didn't see it personally so I don't know if that's a fact, someone told me.

I was asked to come outside my business by the police officers. Standing outside on the patio he came out and talked to one police officer on one side of the patio. I had all my paperwork. I had my licensing; the license for the restaurant, for the bar, the liquor, everything. I had my lease. I had the corporation papers that I was head of the corporation. I talked to this officer, and this officer came over here and asked me what the problem was. And I stated, would you like to see my papers, and he said, No. He said that he didn't want to see any of this and this was a civil matter. That he recommended --and actually he told me that I should stay out of that building. That's how that went on.

What was all said I don't really remember except basically that if I walked through the door they would basically have me arrested, which was the gist of the conversation I had with this officer who didn't want to see anything. I don't know what was going on, what Sowers had told them, whatever. But he had no paperwork, nothing. He didn't have a corporation. He had no lease unless Zuckerman Kronstadt had given him another lease, which is very highly unlikely since it's so illegal to do that.

According to a document entitled "Statement of Material Undisputed Facts" when Officer Awkward arrived on the scene, he discovered two men arguing over who owned the Blue Penguin. The officers requested proof of ownership from the two men. "Defendant Sowers showed Officer Awkward papers stating that he was the owner of the premises, and plaintiff [Weishapl] showed papers which indicated that he was going to court to determine the identity of the rightful owner." In addition, Weishapl showed the officers documentation regarding his motion for a TRO and the order denying it. According to Officer Awkward, he was responding to the restaurant for an unlawful entry complaint. It was undisputed that Weishapl was never asked to surrender his keys to the premises; that ...


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