Chopmist Hill Fire Department v. Town of Scituate et al

Filing 42

DECISION AND ORDER, finding that Plaintiff has failed to meet its burden of proof. Judgment to enter in favor of the Defendants. So Ordered by Chief Judge Mary M. Lisi on 6/28/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

CHOPMIST HILL FIRE DEPARTMENT,
Plaintiff,
v.

C.A. No. 09-531-ML

TOWN OF SCITUATE, a Municipal Corporation;
THEODORE J. PRZYBYLA, Treasurer, Town of
Scituate, in his official capacity; ROBERT BUDWAY,
President, Scituate Town Council, both individually and
in his official capacity as President of the Town Council,
CHARLES COLLINS JR., both individually and in his
official capacity as a Vice President of the Scituate Town
Council; DWIGHT FARRAR, both individually and in
his official capacity as a member of the Scituate Town
Council; JOHN F. WINFIELD JR., both individually and
in his official capacity as a member of the Scituate Town
Council; DAVID D’AGOSTINO both individually and in his
official capacity as a member of the Scituate Town Council;
DAVID L. HANNA both individually and in his official
capacity as a member of the Scituate Town Council;
BRENDA FREDERICKSON both individually and in her
official capacity as a member of the Scituate Town Council,
Defendants.
DECISION AND ORDER
I. Procedural Background
In late 2009, Chopmist Hill Fire Department, (“Plaintiff”), filed a verified complaint
alleging that Defendants had wrongfully evicted Plaintiff from a town-owned fire station and
seized its property in violation of federal and state law. The parties filed cross-motions for
summary judgment and the Court granted in-part and denied in-part Defendants’ motion and
denied Plaintiff’s motion. As a result of the Court’s ruling, four claims survived summary
judgment: Plaintiff’s Fourth and Fourteenth Amendment claims and state law claims of

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conversion and replevin with respect to certain personal property.1 As to each of these claims,
Plaintiff must show that it had a legally cognizable ownership or possessory interest in the
property seized by Defendants.
In early December 2011, the Court commenced a bench trial on the claims. Plaintiff
began its case with testimony from Dennis Gaffney, (“Gaffney”) the Chief of the Chopmist Hill
Fire Department. During Gaffney’s testimony, however, the Court decided to conference the
matter with the parties. As a result of the conference, the parties agreed to submit the matter on
an agreed statement of facts.
The parties have now submitted an agreed statement of facts and post-trial memoranda;
thus, the matter is ripe for decision. The Court’s findings of fact and conclusions of law are set
forth below.
II. Facts
Plaintiff is a Rhode Island non-profit organization incorporated in 1950. The purpose of
the corporation is “the preservation and protection of property from and during fires as may occur
in the Town of Scituate and vicinity.” Stipulation, Agreed Statement of Facts at ¶1; Docket # 35
(“Stipulation”). Defendant, the Town of Scituate (“Scituate” or “Town”) is a municipal entity in
the State of Rhode Island governed by an elected town council. Scituate does not have a
municipal fire department; instead it relies upon non-profit, “volunteer” non-municipal fire
companies to provide fire suppression and emergency medical services to the Town. In

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The reader is directed to Chopmist Hill Fire Department v. Town of Scituate, 780 F. Supp. 2d 179 (D.R.I.
2011), for background on Plaintiff’s claims and the disposition of the summary judgment motions. For purposes of
this decision, the Court will only summarize the facts that are pertinent to an analysis of the issues presently before
the Court.

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September 2009, the Town informed Plaintiff that it was terminating the lease to the Townowned fire station and instructed Plaintiff to vacate the premises. Plaintiff alleges that the Town
then seized equipment owned by Plaintiff and stopped Plaintiff from providing fire suppression
and emergency medical services to the Town. Up until that time, Plaintiff was one of the four
fire companies providing fire suppression and emergency medical services to the Town. After
Plaintiff vacated the fire station, the Town placed the equipment at the station under the control
of another fire company in the Town in order to maintain public safety in the Chopmist Hill area
of Scitutate.
Plaintiff received its funding from several sources: (1) an annual Town appropriation, (2)
grants (federal, state, and private); (3) donations; (4) fund-raising activities, and (5)
miscellaneous other sources. Plaintiff submitted an annual budget to the Town. The budget
outlined what Plaintiff spent in the previous year and the major expenditures planned for the
coming year. Each year, however, the Town advised Plaintiff of the maximum percentage
increase in the Town appropriation that Plaintiff could request.
Town voters approved the Town budget on an annual basis. Once the budget was
approved, Plaintiff received its appropriation in four quarterly payments. Plaintiff deposited the
quarterly appropriation payments in a single checking account into which Plaintiff also deposited
income from its other non-municipal sources. Plaintiff purchased equipment with checks drawn
on that account. Although the Town oversaw spending in Town departments, once Plaintiff
received its appropriation, the Town did not place any requirements or restrictions on Plaintiff’s
use of the appropriation. If requested, the Town could, but was not obligated to, grant an
additional appropriation to Plaintiff.

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During the years it serviced the Town, Plaintiff applied for grants. Some grant
applications were submitted solely by Plaintiff while others were submitted by one fire company
on behalf of all the fire companies in the Town. On occasion, a Town official assisted in the
preparation of a grant application. The funds from grants were forwarded directly to the fire
department applicants.
In or about 1998, Plaintiff purchased a fire-brush truck at a cost of $54,790.42. The brush
truck was purchased by Plaintiff with funds obtained through fund-raising activities.2 The brush
truck was titled in the names of both Plaintiff and the Town.3 The Town paid to insure the truck.
Both the Town and Plaintiff paid for repairs to the truck.
Gaffney compiled an eight-page list (“Gaffney list”) identifying the equipment at the fire
station on the date Plaintiff vacated the station. The list summarizes equipment purchased by
Plaintiff (and repairs paid for by Plaintiff) from 1994 through mid-2009.4 The equipment on the
Gaffney list was used by Plaintiff to provide fire suppression services to the Town.
The Gaffney list includes: (1) several items that were purchased solely with funds
received from federal grants; (2) one item purchased solely with funds received from a state
grant; and (3) several items purchased solely from funds received from a private grant. The
remaining property on the Gaffney list was purchased by Plaintiff using a combination of income

2

Although the parties agreed that the “[b]rush [t]ruck was paid for from a separate account[,]” the parties
fail to identify this “separate account.” Stipulation at ¶ 115 n.6.
3

The title to the brush truck lists the owner as “Town of Scituate Chopmist Hill Fi [sic].” Summary
Judgment Statement of Facts, Exhibit A; Docket 14-1. Although the parties agree that the brush truck is titled in the
name of both the Town and Plaintiff, the Court recognizes that a plausible reading of the title could also suggest that
the Town is the sole owner of the brush truck.
4

The brush truck is on the Gaffney list. The Court also acknowledges that some of the equipment on the
Gaffney list has been returned to Plaintiff.

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received from public grants, private grants, fund-raising activities, and Town appropriations.
In 1998, the Town appropriated $28,250 to Plaintiff; by 2008 the appropriation had risen
to $51,782. The parties agree that Plaintiff purchased equipment with whatever funds were
remaining after Plaintiff paid for operating costs. The parties define operating costs as those
costs associated with heat, utilities, training, etc.
III. Contentions
Plaintiff contends that because it purchased the equipment on the Gaffney list, it owns the
equipment. Plaintiff argues that Defendants’ alleged seizure of its property interfered with its
ownership interest in the property and thus violated the Fourth and Fourteenth Amendments and
state conversion and replevin laws. Defendants contend that the facts do not establish that
Plaintiff owns the equipment.
IV. Analysis
A. Fourth Amendment
In order to succeed on its Fourth Amendment claim, Plaintiff must show that (1)
Defendants seized its property, and (2) that the seizure was unreasonable. Soldal v. Cook
County, Illinois, 506 U.S. 56, 61-62 (1992). A seizure of property occurs when “there is some
meaningful interference with an individual’s possessory interests in that property.” Id. at 61
(internal quotation marks and citation omitted). It goes without saying that Plaintiff bears the
burden of proving that Defendants have violated constitutional protections. Rogers v.
Mulholland, ____ F. Supp. 2d ____ (D.R.I. 2012).

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Plaintiff argues that Defendant interfered with its ownership5 interest in the equipment on
the Gaffney list. Plaintiff argues that its ownership of the equipment is established by virtue of
the fact that over the years, Plaintiff used Town appropriations solely to cover operating expenses
while funds from other sources were used to finance equipment purchases. To support this
claim, Plaintiff cherry picks financial information from a five-year period.6
Plaintiff admits that it had one operating account and all of its income was co-mingled in
that account. Thus, it is impossible for Plaintiff to identify the source of the funds that it used to
pay for operating expenses. As a result, Plaintiff’s operating expense argument is based on pure
speculation and is a non-starter. Furthermore, the financial information in the agreed statement
of facts that Plaintiff relies upon to support its argument is confusing, inconsistent and
inaccurate.7 The Court concludes that Plaintiff’s operating expense argument is simply not
supported by the record.
Plaintiff also argues that it owns the equipment bought with funds received from grants.
Plaintiff, however, ignores the underlying purpose and intent of grant income; that is, the funds
were given by the grantor not for Plaintiff’s benefit but for the benefit of the Town. Plaintiff also

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As noted above, Plaintiff argues that it owns the equipment. In its post-trial memorandum, however,
Plaintiff adds one sentence suggesting that “[e]ven if [the] Court were to rule [Plaintiff] is not the owner of the
equipment [Plaintiff’s] possessory interest alone is sufficient to trigger Fourth Amendment protection.” Plaintiff’s
Post-Trial Memorandum at 9-10; Docket at # 39. Plaintiff, however, does not develop a possessory interest
argument for the Fourth Amendment claim or for any other claim. “[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
6

The parties produced financial information from 1998 to 2008. See Stipulation at ¶¶ 115, 116.

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For example, in one instance the parties agree that for 2004 and 2005, Plaintiff expended $27,684.04 and
$26,723.84, respectively, for equipment purchases. See Stipulation at ¶ 115. However, the parties also agree that,
for the same years, Plaintiff expended $34,436.44 and $21,462.74, respectively, for equipment purchases. See
Stipulation at ¶ 116.

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ignores the fact that some of the grants were not submitted in its name. For example, one grant
was submitted in the name of the North Scitutate Fire Department. That grant application stated
that the grant would be shared by all four fire departments that serve the Town. The fact that the
grant was applied for by another fire company in the Town rebuts Plaintiff’s position that it
owned equipment purchased from funds received from that grant. Furthermore, the fact that the
grant was to be shared by all the fire companies in the Town supports the premise that the
underlying purpose and intent of the grant were to benefit the Town and not any one fire
company.
The grant applications that were submitted as evidence in this case make clear that the
grant monies were provided for the benefit of the Town. Moreover, Gaffney testified that the
items purchased with the money from grants were for the benefit of all the citizens in the town of
Scituate. For example, in a grant application submitted solely by Plaintiff, Plaintiff represented
that the grant would “benefit all the citizens . . . of the town . . . .” Exhibit 4-28. Furthermore,
the public donations received by Plaintiff at the various fund-raising activities were also intended
to benefit the Town and not Plaintiff. Thus, the underlying purpose and intent behind both the
donations and the grant monies received by Plaintiff were to benefit the Town, thus refuting
Plaintiff’s ownership claim.
The Brush truck was purchased entirely with funds received by Plaintiff from fundraising activities. As noted above, however, the purpose and intent behind those funds were to
benefit the Town and not Plaintiff. Furthermore, the manner in which the truck was titled and
the fact that the Town paid to insure the truck, and paid for repairs on the truck are additional
indicia of the Town’s ownership.

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Plaintiff, primarily relying on New Windsor Volunteer Ambulance Corps, Inc., v.
Meyers, 442 F.3d 101 (2d Cir. 2006), contends that case law supports its claim that it owns the
equipment. In New Windsor, plaintiff volunteer ambulance company and the town of New
Windsor entered into a series of contracts from 1971 through 1985. Id. at 106. The contracts
called for the plaintiff to provide emergency medical services to the town in return for
consideration paid by the town. Id. The town purchased an ambulance to be utilized by the
plaintiff. Id. Although the plaintiff continued to provide services to the town, no written
contract was executed after 1985. Id. at 107. From the payments the plaintiff received from the
town, it purchased additional vehicles, equipment and supplies. Id. The plaintiff held title to the
vehicles and insured them and they were housed in the town garage. Id.
In 2004, the town terminated the relationship and seized the vehicles and other
equipment. Id. The plaintiff sued the town alleging violations of the Fourth and Fourteenth
Amendments and state law. Id. at 108. The trial court determined that, although the parties had
not entered into a written contract since 1985, there was no evidence that the contractual
relationship had been terminated. Id. at 109. The court concluded that the town and the plaintiff
had remained parties to a contract. Id. The trial court held that the plaintiff owned the
equipment and the town appealed. Id.
The Second Circuit concluded that the district court had not erred in finding that “as a
matter of contract, the [plaintiff] owned the ambulances and other seized equipment.” Id. at 113
(emphasis added). The court concluded that in
sum, the record furnishes ample support for the inferences that the Town paid the
[plaintiff] pursuant to a contract for services that could not be available without
expensive equipment; that the moneys paid were intended to and did become the
property of the [plaintiff]; and that the [plaintiff] thus purchased the ambulances
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and other equipment out of its own funds and thereby owned the vehicles and
equipment. The trial court’s finding that as a matter of contract, the parties
intended the [plaintiff] would own the ambulances and other equipment is well
supported by the evidence.
Id. at 114 (emphasis added).
In New Windsor, the Court determined that the contractual relationship between the
Plaintiff and the municipality led to the plaintiff obtaining a property interest in the equipment
purchased by the plaintiff. In this matter, however, the parties agree that Plaintiff did not have a
contract with the Town for fire suppression and emergency medical services. See Stipulation at ¶
4. New Windsor does not aid Plaintiff’s ownership argument.8
This Court concludes that Plaintiff has failed its burden of showing that it owned the
equipment. Consequently, Plaintiff’s Fourth Amendment claim fails.
B. Fourteenth Amendment
Plaintiff also contends that Defendants violated its Fourteenth Amendment due process
rights. In order to establish a procedural due process claim, Plaintiff must show (1) that it has a
property interest, and (2) that Defendants deprived Plaintiff of that interest without
constitutionally adequate process. Chopmist Hill Fire Department v. Town of Scituate, 780 F.
Supp. 2d 179, 191 (D.R.I. 2011). As noted above, Plaintiff has failed to carry its burden that it
owns the equipment in dispute. Thus, Plaintiff has failed to establish a property interest in the
equipment. As a result, the due process claim fails.

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The Court also finds that the additional cases cited by Plaintiff do not support its ownership argument
because the additional cases either (1) involve a contract, (2) and/or the question of ownership of property was not
specifically before the court, (3) and/or it was undisputed that one party held title to the property. See e.g. Lish v.
Coolville Volunteer Fire Department, 652 N.E.2d 7 (Ohio Ct. Com. Pl. 1995) (negligence action; parties subject to
contract); Lacey Park Volunteer Fire Company No. 1 v. Board of Supervisors of Warminster Township, Bucks
County, Pennsylvania, 365 A.2d 880, 882 (Pa. Commw. Ct. 1976) (“it is undisputed that the real and personal
property . . . are titled in the name of appellant”).

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C. State Law Claims
Plaintiff also claims that Defendants violated state conversion and replevin laws. “[I]n
order to sustain an action for conversion of personal chattels, a plaintiff must demonstrate an
ownership or possessory interest in the property at the time of conversion.” DeChristofaro v.
Machala, 685 A.2d 258, 263 (R.I. 1996). Likewise, whenever goods or chattels of more that
$5,000 “shall be unlawfully taken or unlawfully detained from the owner or from the person
entitled to possession . . . the owner or the other person may cause the same to be replevied . . . .”
R.I. Gen. Laws § 34-21-1. Because this Court has determined that Plaintiff has failed to carry its
burden that it owns the equipment, Plaintiff’s claims of conversion and replevin fail.9
IV. Conclusion
Plaintiff has failed to meet its burden of proof. For the reasons set forth, the Clerk is
directed to enter judgment in favor of Defendants.

SO ORDERED.

/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
June 28 , 2012

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The Court need not address any possessory interest argument in either Plaintiff’s Fourteenth Amendment
claim or the conversion and replevin claims because, as noted above, Plaintiff failed to develop a possessory interest
argument.

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