Gold and Watches Corp. v. Alishaev Bros., Inc.
Filing
56
OPINION AND ORDER re 38 MOTION for Summary Judgment and Memorandum of Law filed by Alishaev Bros., Inc. Signed by US Magistrate Judge Camille L. Velez-Rive on 10/4/11.(ljt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GOLD AND WATCHES, CORP.,
Plaintiff,
v.
CIVIL NO. 10-1491 (CVR)
ALISHAEV BROS., INC., ET AL.,
Defendants.
OPINION AND ORDER
INTRODUCTION
Plaintiff Gold and Watches, Corp. (hereafter plaintiff “Gold & Watches”) filed a
complaint for torts and damages for intentional trespass of chattels and conversion and
intentional and illegal seizure of property by defendant Alishaev Bros., Inc. (hereafter
defendant “Alishaev”). Gold & Watches claims to be the sole and lawful owner of property
stored in a booth stand located at Gran Caribe Mall in Vega Alta, composed of gold jewelry,
merchandise and cash, as to which defendant Alishaev wrongfully exercised dominion and
control. (Docket No. 1).
Defendant Alishaev filed a motion for summary judgment in which it submits the
complaint filed is a futile and unwarranted attempt to prevent a lawful creditor from
executing a default judgment. Thus, defendant Alishaev files the dispositive motion on
grounds plaintiff Gold & Watches lacks a cognizable claim against said defendant. Alishaev
further claims plaintiff Gold & Watches is unable to show entitlement or rightful ownership
of the property seized, for which it lacks an actionable cause of action of illegal seizure or
conversion of property. (Docket No. 38).
Gold & Watches, Corp. v. Alisheav Bros., Inc., et al
Civil No. 10-1491 (CVR)
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In opposition to summary judgment, plaintiff Gold & Watches avers the subject of
the state judgment alleged by defendant Alishaev, is Michel Prieto-Reyes, a person separate
and distinct from plaintiff Gold & Watches, fact known to defendant at the time of the
attachment. Still, defendant initiated the seizure and under its instructions state marshals
continued action as to the property of Gold & Watches which is a corporation. (Docket No.
44).
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56©. Pursuant to the language of the rule, the moving
party bears the two-fold burden of showing that there is “no genuine issue as to any
material facts,” and that he is “entitled to judgment as a matter of law.” Vega-Rodríguez v.
Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
After the moving party has satisfied this burden, the onus shifts to the resisting party
to show that there still exists “a trial worthy issue as to some material fact.” Cortés-Irizarry
v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed “material” if it
potentially could affect the outcome of the suit. Id. Moreover, there will only be a
“genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable fact-finder,
examining the evidence and drawing all reasonable inferences helpful to the party resisting
summary judgment, could resolve the dispute in that party’s favor.” Id.
Gold & Watches, Corp. v. Alisheav Bros., Inc., et al
Civil No. 10-1491 (CVR)
Opinion and Order
Page No. 3
At all times during the consideration of a motion for summary judgment, the Court
must examine the entire record “in the light most flattering to the non-movant and indulge
all reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994). There is “no room for credibility determinations, no room for
the measured weighing of conflicting evidence such as the trial process entails, [and] no
room for the judge to superimpose his own ideas of probability and likelihood . . . .”
Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). In fact,
“[o]nly if the record, viewed in [this] manner and without regard to credibility
determinations, reveals no genuine issue as to any material fact may the court enter
summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).
LEGAL DISCUSSION
Defendant Alishaev submits as undisputed issues of fact in support of summary
disposition of plaintiff Gold & Watches’ claims against said defendant that:
1. Michel Prieto-Reyes and/or Armando Rivera d/b/a Figali Outlet Jewelry and/or
d/b/a/ Timing Jewelry were engaged in the retail business of jewelry merchandise; their
business booth stand/store was located in the Grand Caribe Mall. Deft’s Uncontested
Annex A; Deft’s Exhibit 1, ¶5.1
1
Michel Prieto-Reyes and Armando Rivera are husband and wife who traveled to defendant Alishaev’s
showroom or tradeshows to purchase merchandise, which was invoiced and upon failure to pay the account balance,
resulted in judgment and pursuit of post-judgment remedies by defendant herein Alishaev in state court.
Gold & Watches, Corp. v. Alisheav Bros., Inc., et al
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2. Defendant Alishaev obtained a prior judgment against Michel Prieto d/b/a Figali
Outlet Jewelry and Timing, Civil No. DCD2008-2309. Deft’s Uncontested ¶ 6, Exhibit 1 at
3(a).
3. Defendant Alishaev sought and obtained post-judgment remedies against
judgment debtor Michel Prieto-Reyes, Figali Outlet Jewelry and Timing Jewelry and/or
authorized the execution of the writ at the place of business of a debtor-in-possession.
Deft’s Uncontested 7, Exhibit 1, Answer to Interrogatories at ¶5; Exhibit 4, Notice of
Judgment DCD2008-2309; Exhibit 4-5.
4. Defendant Alishaev is unfamiliar with the name of Gold & Watches Corp., having
no knowledge of the existence of said corporation.2
The relevant issues submitted by plaintiff Gold & Watches in its opposition provide
that, although defendant Alishaev has claimed not being in possession of the property
seized from plaintiff Gold & Watches, plaintiff avers defendant Alishaev initiated the seizure
and instructed the state marshals to continue with the attachment of property belonging
to plaintiff, notwithstanding a telephone conversation at the time informing the real owner
of the property, that is, being informed by officers of Gold & Watch as corporation, was an
entity separate from Michel Prieto-Reyes, the subject of the judgment, order of execution,
attachment and writ.
2
Defendant Alishaev submits the Corporation Certificate of Registry with the P.R. Department of State showing
tha tGold & Wateches, No. 174257, was registered on August 3, 2007.
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In addition, plaintiff Gold & Watches states as undisputed issues of facts that:
1. Michel Prieto-Reyes filed a petition for bankruptcy under Chapter 13 on June 7,
2010, including the debt claimed by Alishaev object of the judgment issued. On account of
the pre-nuptial agreement, Armando Rivera does not appear as debtor in the bankruptcy
petition. Plaintiff’s Uncontested ¶1; Exhibit 4, Bankruptcy Petition; Exhibit 13, Order of
Confirmation.
2. Plaintiff Gold & Watches was created in the year 2007 as a separate entity and has
no ties to defendant Alishaev, has never done any business with Alishaev, nor Alishaev had
any knowledge as to the existence of plaintiff corporation until the seizure that took place
on May 10, 2010. Plaintiff’s Uncontested ¶2; Deft’s Exhibit 1, Answer to Interrogatories
¶¶8, 9.
3. Agents of defendant Alishaev disregarded information provided by corporate
officers of Gold & Watches insofar being a separate entity from Michel Prieto-Reyes nor
inquire as to the veracity the property being seized was property of Gold & Watches.
Plaintiff’s Uncontested ¶3; Exhibit 15, Answer to Interrogatories ¶¶ a-b.
4. Armando Rivera and Michel Prieto are married as of November 25, 2003, under
a pre-nuptial agreement, as a result of which debts and obligations are separated for each
of the spouses. Plaintiff’s Exhibit 1, Armando Rivera’s Affidavit; Exhibit 2, pre-nuptial
agreement.
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Page No. 6
5. Michel Prieto-Reyes d/b/a Figali Outlet Jewelry’s principal place of business is
not a booth/stand at Gran Caribe Mall, Vega Alta, P.R., but rather one at Plaza Aquarium
Local K-9, Toa Alta, P.R. Exhibit 3, Deft’s Answer to Plaintiff’s Interrogatory.
6. Plaza Aquarium’s address was the location defendant Alishaev had conducted
business with Michel Prieto prior to 2006. Id.
7. Plaintiff Gold & Watches operates a jewelry retail business at Gran Caribe Mall.
Figali did not operate or do business from said location. Exhibit 1.
8. Armando Rivera did not incur in a debt with Alishaev nor acquire jewelry on
credit from said defendant. This was the personal business of Michel Prieto-Reyes, who
filed a petition under Chapter 13 of the Bankruptcy Code for payment plan which included
the debt of defendant Alishaev. Plaintiff’s Uncontested ¶1; Exhibit 4, Bankruptcy Petition;
Exhibit 4a, Schedule Listing Debts; Exhibit 5, Payment Plan; Exhibit 6, Alishaev’s claim
in bankruptcy petition; Exhibit 13, Order of Confirmation.
9. The state complaint and judgment on collection of monies refer to community
property of Michel Prieto-Reyes and Armando Rivera but no such community property
exists because of the pre-nuptional agreement.
Still, the judgment issued allowed
defendant Alishaev to collect the amount of $59,465.23, plus $1,000.00 in attorney’s fees
from Michel Prieto-Reyes not from herein plaintiff Gold & Watches. Plaintiff’s Uncontested
¶6; Deft’s Exhibit 7, Order of Execution and Mandate.
10. The Order and Mandate (Writ of Execution) issued by state courts on March 18
and April 28, 2010, respectively, ordered the state marshals to attach personal property
Gold & Watches, Corp. v. Alisheav Bros., Inc., et al
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belonging to defendant, in the possession of defendant or property in possession of third
parties. Plaintiff’s Uncontested ¶7.
11. Gold & Watches was and is not an entity in possession of property of the debtor
subject of the complaint, judgment and writ but an entity separate from Michel PrietoReyes. Plaintiff’s Uncontested ¶8; Exhibit 8, corporate documents from the Department
of State of the Commonwealth of Puerto Rico.
12. Armando Rivera is not a debtor in possession nor has any shares or ownership
in the business entity of his wife Michel Prieto-Reyes. He is a corporate officer, President
of herein plaintiff corporation Gold & Watches, who was present at the time of execution
of the writ on May 10, 2010. Plaintiff’s Uncontested ¶9; Exhibit 1, Rivera’s affidavit;
Exhibit 9, Corporate Annual Report.
13. Plaintiff produced to defendant evidence of the rightful ownership of the seized
merchandise belonging to Gold & Watches. Plaintiff’s Uncontested ¶10; Exhibit 10,
Answer ¶7 to Production of Documents.
14. The internal audit report produced to defendant Alishaev of items seized on May
10, 2010, identifies all items of Gold & Watches with vendors’ codes showing that Alishaev
was not a vendor of Gold & Washes. This audit conforms to the seized merchandise
presently under custody of the Bayamón Superior Court subject of the attachment.
Plaintiff’s Uncontested ¶10; Exhibit 11, Vendors by Code; Exhibit 12, Inventory produced
Marshal.
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15. The list of the deficit inventory compiled after the seizure which was provided
to defendant Alishaev shows none of the items therein are property of “d/b/a” [sic] Michel
Prieto-Reyes the object of the state judgment and writ. Plaintiff’s Uncontested ¶11; Exhibit
10, Deficit Inventory.
A wrongful attachment claim under Puerto Rico law has three elements, to wit: an
act or omission, damages, and fault or negligence. Even a temporary attachment can cause
damage sufficient to support wrongful attachment claim as the affected party’s credit may
be adversely affected, business may fail and may suffer emotional distress. García-Guzmán
v. Villoldo, 273 F.3d 1 (1st Cir. 2001).3
Notwithstanding defendant Alishaev’s position as to plaintiff Gold & Watches’ lack
of a claim against said defendant in this federal case, ordinarily, right to recovery of owner
of property attached in a proceeding to which he is not a party is in no way dependent on
the outcome of the controversy, and thus a third party whose property has been erroneously
attached has a cause of action immediately upon learning of the attachment, regardless of
the outcome of the main action. 31 L.P.R.A. Sec. 5141; see W. Clay Jackson Enterprises, Inc.
v Greyhound Leasing & Financial Corp., 463 F.Supp. 666 (D. Puerto Rico 1979).4
From the record, the parties’ uncontested statements and documents available, there
is evidence to contravene above defendant’s undisputed facts, creating genuine issues of
3
Liability for a wrongful attachment is based on Article 1802 of the Civil Code, which provides that “[a] person
who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so
done”. 31 L.p.R.A. §5141. See García-Guzmán v. Villoldo, 273 F.3d at 6.
4
The action to recover damages by reason of an alleged wrongful attachment is an “ex delicto” action based on
Article 1802 of the Civil Code of Puerto Rico.
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Page No. 9
contested facts in controversy which preclude summary judgment for defendant Alishaev.
Even from defendant’s own documents in support of summary judgment nowhere is it
shown that the subject of the state judgment or writ of execution was herein plaintiff Gold
& Watches, but rather Michel Prieto Reyes d/b/a Figali Outlet Jewelry and Timing
Jewelry.
Furthermore, the exhibits submitted by defendant Alishaev in support of
summary disposition fail to support said subject individual or d/b/a entity had a
stand/store in Grand Caribe Mall. Defendant’s own exhibits show that it is herein plaintiff
Gold & Watches who has physical and postal address at Centro Grand Caribe Mall #40.
Deft’s Exhibit 2-A, Profitable Corporation Annual Report for 2009. Michel Prieto-Reyes
and Armando Rivera-Rojas are in said report listed as two officers of said corporation, being
Secretary and President-Treasurer, respectively. Deft’s Exhibit 2-B.
Plaintiff Gold & Watches also rebuts defendant Alishaev’s averment as to lacking any
property right over the items object of the seizure. There is evidence showing defendant
Alishaev was initially informed about the property to be attached as belonging to the
corporation Gold & Watches located at Centro Grand Caribe Mall #40. Although defendant
is not expected to take at face value this information, defendant Alishaev was subsequently
provided with deficit inventory and an internal audit that corresponds to the items seized
consonant with the ones under the custody of the state marshals reflecting the items do not
show Alishaev as a vendor.5
5
Sometimes an individual’s property is attached by mistake in the course of litigation to which he is not a party.
Fresh-O-Baking Co. v. Molinos de Puerto Rico, Inc., 3 P.R. Offic. Trans. 708, 1975 WL 388832 (1975) (involving claim by
non-party whose equipment was stores in defendant’s bakery, which plaintiff attached).
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Page No. 10
Regardless of the above, defendant Alishaev submits this is not conclusive evidence
of sole or rightful ownership of the seized property by plaintiff Gold & Watches.
Nevertheless, it still creates a genuine and material issue of disputed fact which does not
allow summary disposition for defendant Alishaev, whose only legal support is a citation
to Banco Bilbao Vizcaya v. Angel Lopez-Montes, 168 DPR 700, 710,711 (2006) (discussing
attachment of property as to a joint bank account considered funds under the custody of a
third-party) that fails to support its contention for summary adjudication.
In sum, plaintiff Gold & Watches has presented sufficient disputed facts of being a
non-party to the attachment of the property. There is, additionally, disputed evidence of
defendant Alisheav’s submissions denying evidence the property belonged to plaintiff Gold
& Watches. Thus, the issues presented have raised credibility determinations which need
to be elucidated, thus making summary judgment disposition improper. The validity of the
attachment would depend on the validity of any such claim against the owner of the
property, for if there is no merit to Alisheav’s claims as determined by the state judgment
against plaintiff Gold & Watches, the attachment of plaintiff’s property would have been
wrongful and damages would need to be established.
A moving party for summary judgment bears the initial burden of demonstrating the
absence of genuine issues of material fact. Having examined the above, defendant Alisheav
has not met such burden, for which the request for summary disposition is not proper.
Gold & Watches, Corp. v. Alisheav Bros., Inc., et al
Civil No. 10-1491 (CVR)
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Page No. 11
CONCLUSION
In view of the foregoing, defendant Alisheav’s Motion for Summary Judgment is
DENIED. (Docket No. 38).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 4th day of October of 2011.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE
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