Parking boot suit gets boot

RALEIGH -- It seemed like a clever maneuver -- Raleigh lawyer Frank Kirschbaum swiped a parking boot clamped onto the tire of his Toyota Land Cruiser in a downtown parking lot.

In downtown Raleigh where motorists complain of predatory towing, passers-by applauded his action. But on Tuesday, the N.C. Court of Appeals ruled that Kirschbaum was in the wrong.

A three-judge panel sided with a lower court that struck down Kirschbaum's lawsuit against McLaurin Parking Co., which leased spaces in the lot, and Quantum Support Inc., which monitors the lot.

Attempts to reach Kirschbaum and his attorneys were unsuccessful.

In March 2006, Kirschbaum parked in a leased space in the private lot while he attended a lunch meeting at the nearby Caffe Luna. While he was in the restaurant, Quantum immobilized Kirschbaum's Land Cruiser with a boot device and left a note that he could have it removed for a $50 fee.

Kirschbaum instead removed the tire with the boot still attached, replaced it with a spare and drove away. A crowd cheered him on.

He initially refused to return the boot, telling a police officer that Quantum could bid on it on eBay, though he later turned the device over to police. He was cited for misdemeanor larceny.

Kirschbaum then filed his lawsuit.

He accused the parking and security companies of trespassing on his personal property by attaching the boot to his sport utility vehicle, damaging it. The lawsuit also accused the companies of malicious prosecution and deceptive trade practices, contending that the parking space was not clearly marked.

The appeals court rejected all of Kirschbaum's arguments. It upheld the 2006 ruling by Wake Superior Court Judge Donald W. Stephens.

Judge Rick Elmore, who wrote the opinion for the court, acknowledged that the Land Cruiser was Kirschbaum's personal property, but the defendants had a right to boot it.

"The application of a boot to a car is an interference with the property ... and one cannot drive around with a boot attached to the wheel of one's car," Elmore wrote. "However, defendants were privileged to attach that boot to protect their right to exclusive possession of Lot 11."

Elmore also said that Raleigh police were justified in citing Kirschbaum for the misdemeanor.