IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-50919 Charles R. Fulbruge III
Clerk
CYNTHIA MORGAN RIPPSTEIN
Plaintiff-Appellant
v.
GEOFFREY BARR
Defendant-Appellee
Appeal from the United States District Court
For the Western District of Texas
USDC No. 5:05-CV-234
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Cynthia Rippstein appeals the district court’s order granting summary
judgment in favor of Comal County Assistant District Attorney Geoffrey Barr on
Ms. Rippstein’s 42 U.S.C. § 1983 claim. Ms. Rippstein brought suit against Barr
and Comal County Constable Benny Scroggin on March 24, 2005, alleging that
their attempted enforcement of a writ of execution against her husband’s
property violated her constitutional right to be free from unreasonable seizures.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-50919
The district court dismissed all claims against Barr, finding that he was entitled
to qualified immunity. Ms. Rippstein timely appealed.
I.
This dispute arose out of an attempt to enforce of a writ of execution issued
to seize property owned by Ms. Rippstein’s husband, Van Rippstein. In 1991, a
$610,000 civil judgment was entered against Van Rippstein. Mr. Rippstein
thereafter married Appellant Cynthia Rippstein in 1994. Prior to the marriage,
Van and Cynthia entered into a premarital agreement providing that their
respective current and future property would remain separate. During the
marriage, Ms. Rippstein acquired a number of valuable separate property assets,
including several substantial gifts and inheritances from Mr. Rippstein’s family.
In 2003, Ms. Rippstein acquired real property located on Mountain Laurel Drive
in New Braunfels, Texas, where the Rippsteins resided when Barr and
Constable Scoggin attempted to enforce the writ. We note that Mr. Rippstein has
acquired virtually no assets during the marriage.
In 2001, the owner of the 1991 judgment against Mr. Rippstein sought and
received a writ of execution to satisfy the judgment, which was valued at over
$1.9 million at the time of this suit. The creditor provided the writ to Constable
Scroggin, who declined to execute it because his investigation failed to reveal any
seizable property.
In June 2003, the judgment creditor assigned his interest in the judgment
to TAPPS LLC. On September 2, 2003, TAPPS obtained a new writ of execution
to enforce the judgment. The writ authorized any Texas sheriff or constable to
levy any “of the Chattels, Personal Property or Real Estate, subject to execution
by law of the said VAN JOHN HARPER RIPPSTEIN.” On September 11, 2003,
TAPPS’s attorney sent Constable Scroggin a letter arguing that the Rippsteins’
community property was subject to seizure, and urging Scroggin to execute the
writ.
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No. 06-50919
On September 12, 2003, ADA Barr requested a certified copy of the writ
and explained to TAPPS that Constable Scroggin was not authorized to
determine which property was subject to seizure under the writ. However,
several days later, Barr advised Constable Scroggin that he could levy non-
exempt community property titled in Ms. Rippstein’s name pursuant to the
Texas statutory presumption that property obtained during marriage is
community property. See TEX. FAM. CODE § 3.003(a). On September 18, 2003,
TAPPS’s attorney sent Constable Scroggin a list of assets subject to seizure, and
informed him that the Rippsteins’ current residence on Mountain Laurel Drive
was not their registered homestead.
On October 2, 2003, Constable Scroggin and other officers went to the
Mountain Laurel property to execute the writ. Upon arriving, Constable
Scroggin notified the Rippsteins of the writ and asked them to identify property
subject to seizure. Ms. Rippstein informed Constable Scroggin that the Mountain
Laurel property was her homestead and Mr. Rippstein informed Constable
Scroggin that all of the property located there was his wife’s separate property.
Constable Scroggin posted a sign with the following language at the gate to the
property: “NOTICE: THIS PROPERTY HAS BEEN SEIZED UNDER WRIT OF
EXECUTION, CAUSE NO. 91-04777 BY COMAL COUNTY CONSTABLE PCT.
4, BEN SCROGGIN, DO NOT REMOVE UNDER PENALTY OF LAW.”
Later the same day, Ms. Rippstein sought a temporary restraining order
to stop the alleged seizure. The court granted Ms. Rippstein the restraining
order, setting bond at $20,000. Ms. Rippstein was unable to post the bond at
that time and returned to the Mountain Laurel property. Constable Scroggin
ordered Ms. Rippstein and her husband not to leave the property and allegedly
searched Ms. Rippstein’s truck and purse when she did leave the property the
next morning to post the bond. Once Ms. Rippstein posted the bond, Constable
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No. 06-50919
Scroggin immediately withdrew his personnel, but left the above described sign
posted at the property.
Ms. Rippstein brought a 42 U.S.C. § 1983 suit against Barr and Constable
Scroggin, alleging that their actions resulted in a seizure of her person and her
property that violated her Fourth and Fourteenth Amendment rights. Barr and
Constable Scroggin moved for summary judgment on the basis of absolute and
qualified immunity. In an October 6, 2005 Opinion and Order, the district court
held that Barr was entitled to qualified immunity for his actions, but held that
at least one claim could proceed against Constable Scroggin. By order dated
June 19, 2006, the district court entered judgment against Ms. Rippstein on her
claims against Barr in his individual capacity, and dismissed Barr from the suit.
Ms. Rippstein timely appealed the judgment. Because the district court did not
dismiss Constable Scroggin from the suit, he is not a party to this appeal.
II.
We have reviewed the parties’ briefs and the record, and have heard oral
argument. Further, we have carefully considered the district court’s well-
reasoned Opinion and Order Granting in Part and Denying in Part Defendants’
Motion for Summary Judgment. Based on our review, we affirm the judgment
of the district court essentially for the reasons stated in its October 6, 2005
Opinion and Order.
AFFIRMED.
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No. 06-50919
DENNIS, Circuit Judge, concurring separately.
I respectfully concur in the judgment. The majority reached the right
result in granting qualified immunity to the defendant. I disagree with the
district court opinion adopted by the majority in two respects.
First, the plaintiff’s claim of a Fourth Amendment violation can be
analogized to the situation in United States v. Certain Real Property Located
near Highway 195, 163 F.3d 1295, 1298-301 (11th Cir. 1998), which supports the
appellant’s position that a seizure of real property occurred. While I believe a
seizure occurred, I nevertheless agree with the majority in granting qualified
immunity to the defendant, because, under the circumstances, seizure was not
objectively unreasonable.
Second, I disagree with the majority in that the defendant probably did
violate Fourteenth Amendment rights as the plaintiff alleges, but I agree with
the majority in granting qualified immunity, because those rights were not
clearly established at the time of the violation.
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