                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1267
                                  ___________

Tylene J. Coonts, Larry Coonts, and  *
Robert M. Sweere,                    *
                                     *
             Appellants,             *
                                     * Appeal from the United States
      v.                             * District Court for the Western
                                     * District of Missouri.
John Potts, Sr., Gary Koop,          *
Vernon Johnson, Trampus Taylor,      *
and Hobie Johnson,                   *
                                     *
             Appellees.              *
                                ___________

                            Submitted: September 13, 2002

                                 Filed: January 3, 2003
                                  ___________

Before LOKEN, RILEY, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Tylene and Larry Coonts (collectively referred to as the “Coontses” and
individually by their first names) appeal the District Court’s1 summary judgment in
favor of Gary Koop, Vernon Johnson, Trampus Taylor, Hobie Johnson, and John


      1
      The Hononorable Gary A. Fenner, United States District Court Judge for the
Western District of Missouri.
Potts (collectively referred to as appellees and individually by their last names). The
Coontses sued the appellees on claims for violation of their civil rights, trespass,
illegal arrest, malicious prosecution, and conversion revolving around the seizure of
several pieces of furniture. The Coontses and their attorney also appeal the District
Court’s assessment of sanctions against counsel under Federal Rule of Civil
Procedure 11. We affirm the District Court’s decision.

                                         Facts
       The essential facts are not in dispute. This action stems from the appellees’
retrieval through a writ of execution of furniture and appliances purchased on credit
by the Coontses from Potts’ business, Long Dollar Furniture and Appliance (“Long
Dollar”), between December 1998 and April 1999. At the initial purchase in
December 1998, the Coontses agreed that they would make payments of $200 a week
on the debt. On April 16, 1999, Tylene signed a new sales contract that included all
of the items purchased by the couple in December along with other newly purchased
items. The total cost of the items purchased was $4,406.16, and at the time of signing
the new agreement, the Coontses had paid approximately half of the debt. The
contract stated that the Coontses would continue to pay $200 a week and that Potts
and Long Dollar retained a purchase money security interest in all of the items until
the debt was paid in full.

        In the spring of 2000, the Coontses defaulted by failing to make several
payments. Potts then filed a small-claims petition against Tylene in state court. The
complaint requested the return of the items or payment of the remaining balance due
thereon and late charges. In both a small-claims trial and a subsequent circuit court
trial, the courts awarded judgment to Potts and Long Dollar. Tylene failed to satisfy
the judgment in full and filed no further application for relief from the judgment or
notice of appeal. Thereafter, Potts submitted to the circuit court clerk an
“Execution/Garnishment Application and Order” along with a copy of the judgment.
The clerk completed the writ of execution, signed it on behalf of the court as required

                                         -2-
 by statute, and forwarded it to the Douglas County Sheriff’s Office to levy on the
property.

       On July 27, 2000, Sheriff Koop called Potts to inform him that deputies would
be serving the writ that day and collecting the items listed. However, the sheriff
indicated that his office did not have the means to transport or store the items. Sheriff
Koop asked Potts to transport and store the items for the sheriff’s department until
they could have an auction to sell the items at a later date. The group then proceeded
to the Coontses’ residence to collect the items. To obtain access to the property, the
group cut a padlock on the entry gate. As they neared the residence, Tylene refused
them entry to collect the items. Consequently, Johnson arrested and handcuffed her,
charging her with “interference with legal process” pursuant to Mo. Rev. Stat. §
575.160. She was taken to the police station and charged; however, she was never
prosecuted for this violation. The property was not collected at that time.

        The group returned to the Coontses’ residence on August 1, 2000, to levy on
the property and serve an unrelated eviction notice on the Coontses. The group again
cut the gate lock, and upon entering the property, they encountered Tylene. Upon
informing her that they were there to take the property, Tylene refused to allow them
inside, and they again arrested her. She fought, kicked, hit, and attempted to bite the
officers until they handcuffed her and placed her in a police car. Larry arrived at the
house soon after and did not resist the levy. At that point, the officers released Tylene
from the police car. When she reentered the home, she grabbed a candle and threw
it at the large-screen television, one of the items the Coontses purchased from Long
Dollar, and destroyed the screen. She was then arrested for interference with judicial
process, resisting arrest, third-degree assault on a police officer, and property damage.
At that point, the officers moved the items listed on the writ of execution from inside
the Coontses’ home to the porch, where Potts’ employees took the items and loaded
them on a moving truck.



                                          -3-
       After retrieving the items, Potts transported them to his store where he stored
the property in the basement and marked the items with signs indicating that the
property belonged to the Douglas County Sheriff’s Department. Potts later contacted
Sheriff Koop to inquire about the status of the items and when an auction might be
held. Sheriff Koop indicated that he should continue to hold the items for the sheriff’s
department until the legal issues had been resolved. The items remain at the
warehouse.

       After the levy, the Coontses filed this lawsuit on February 20, 2001. They
raised a civil rights claim under 42 U.S.C. § 1983, as well as other state law claims.
The parties ultimately filed cross-motions for summary judgment. In an order issued
December 27, 2001, the District Court granted the sheriff’s and deputies’ motion for
summary judgment against the Coontses, and denied the Coontses’ motion for
summary judgment against the officers. The court issued a show-cause order to the
Coontses’ attorney and received his brief on the issue of Rule 11 sanctions.
Thereafter, the District Court issued an order on January 11, 2002, assessing
sanctions under Rule 11 (b)(2) in the amount of $2,000 against the Coontses’ attorney
for asserting frivolous claims for malicious prosecution, excessive force, and trespass,
none of which counsel addressed in his briefs for summary judgment. Thereafter, on
January 18, 2002, the District Court rendered the final order in the case by granting
Potts’ motion for summary judgment against the Coontses. The Coontses and their
counsel appealed these orders on January 29, 2002.

                                          I.
       Summary judgment is proper when the record, viewed in the light most
favorable to the nonmoving party and giving that party the benefit of all reasonable
inferences, shows that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). We review
a District Court’s grant of summary judgment de novo. Burk v. Beene, 948 F.2d 489
(8th Cir. 1991). When considering whether to grant summary judgment, a court must

                                          -4-
examine all “pleadings, depositions, answers to interrogatories ... admissions on file
... [and] affidavits.” Fed.R.Civ.P. 56(c). We review de novo the District Court's
interpretation of Missouri law. See Salve Regina College v. Russell, 499 U.S. 225,
231 (1991); First Bank of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir. 1998).

                                            II.
       The Coontses raise nineteen points on appeal in a twenty-five page brief. It is
unnecessary, however, to address all of these issues separately. The gravamen of the
Coontses’ appeal is whether the appellees violated their civil rights under § 19832 by
seizing the property via the writ of execution. They allege that enforcement of the
writ of execution violated their Fourth Amendment right to be free from an
unreasonable seizure because the writ was not signed by a judge.3 Because it was not,
the Coontses contend it was issued without probable cause and is, thus, invalid.
Additionally, they argue that the sheriff, the deputies, and Potts are not entitled to the
protection of qualified immunity for their acts in enforcing the writ. As developed in
this record, the Coontses arguments are unavailing.



      2
          The statutory language in 42 U.S.C. § 1983 states in pertinent part:

      Every person who, under color of any statute, ordinance, regulation,
      custom, or usage, of any State ... subjects, or causes to be subjected, any
      citizen of the United States or other person within the jurisdiction
      thereof to the deprivation of any rights, privileges, or immunities
      secured by the Constitution and laws, shall be liable to the party injured
      in an action at law, suit in equity, or other proceeding for redress.
      3
       Missouri law does not require a judge’s signature on writs of execution. The
Coontses argue that the seizure was constitutionally unreasonable because a judge
did not sign the facially-valid writ of execution. The Coontses, however, did not
properly plead or argue the constitutionality of the Missouri statutes and rules
allowing the issuance of a writ of execution by a court clerk following a final
judgment.

                                           -5-
       In a § 1983 action against public officials or those acting with public officials,
a plaintiff must show that the defendants violated “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800 (1982). However, before reaching the issue of whether such
a right is “clearly established,” the inquiry must first focus on whether the plaintiffs
have actually asserted a violation of a constitutional right at all. See Siegert v. Gilley,
500 U.S. 226, 232 (1991).

       A seizure under the Fourth Amendment occurs when there is “some meaningful
interference with an individual’s possessory interest in that property.” Soldal v. Cook
County, 506 U.S. 56, 61 (1992). In this case, the furniture and appliances were
“seized” by the deputies pursuant to the facially-valid writ of execution. The seizure
was authorized by Mo. Rev. Stat. § 105. 240, which allows officers to “break open
doors and enclosures to execute a warrant or other process ... to levy an execution, or
execute an order for the delivery of personal property” if the door or enclosures are
not opened based on the officers’ announcement of his purpose to the judgment
debtor. The Coontses argue that this seizure violated the Fourth Amendment because
a detached magistrate did not review the writ of execution for probable cause
justifying entry into the house. However, the Coontses have not properly challenged
the constitutionality of these statutes, and we, therefore, do not address this issue.

      The writ of execution, therefore, was issued in conformance with Missouri and
federal law.4 Missouri law authorized the officers to enter the property to effectuate


      4
        Under Missouri law, in order to levy on property, the creditor must file an
application for a writ of execution, and the court clerk may issue the writ under Rules
76.01 and 76.02 of the Missouri Rules of Civil Procedure. Long-established Missouri
and federal law indicates that a final judgment alone is sufficient to allow the court
clerk to issue a writ of execution to levy on property sufficiently described in the
judgment. See Yazoo & M.V.R. Co. v. Clarksdale, 257 U.S. 10, 19 (1921); Mo. Rev.
Stat. § 513.015 (2002); Fielder v. Fielder, 671 S.W.2d 408, 410 (Mo.App. E.D.

                                           -6-
the seizure, and they seized the property after the Coontses received notice and an
opportunity to be heard. Based upon the undisputed facts viewed in the light most
favorable to the Coontses, we hold that the deputies conducted the levy consistent
with presumptively valid state law, and their actions did not constitute an
unreasonable seizure.

                                           III.
       In their second grouping of arguments, the Coontses assert that the deputies
and Potts unlawfully took the property from the house in violation of the Coontses’
due-process rights, and that the District Court erred by determining that Larry did not
have a protected interest in the “marital” property as a tenant by the entirety. They
assert that even if the authorities could validly remove property from Tylene’s
possession based upon a contract she alone signed, they could not do the same with
respect to Larry, who had not signed the second agreement.

      The District Court determined that Missouri law does not allow personalty to
be held in entirety by a husband and wife. Although Missouri law does, in fact, allow
spouses to hold personalty as tenants by the entirety, this feature of Missouri law does
not benefit the Coontses in this case. See Hallmark v. Stillings, 648 S.W.2d 230 (Mo.




1984); In re Marriage of Wofford, 589 S.W.2d 323, 327 (Mo.App. S.D. 1979); State
ex rel. Keitel v. Harris, 186 S.W.2d 31 (Mo. 1945). Furthermore, under Missouri law,
it is not a prerequisite to an execution that an express order of the court be made for
its issuance because the right to execute a judgment, unless validly stayed, accrues
immediately upon rendition of that judgment. Fielder, 671 S.W.2d at 410-411 (citing
Griggs v. Miller, 374 S.W.2d 119, 121 (Mo. 1963) and State ex rel. Capitain v.
Graves, 190 S.W. 859, 861 (Mo. banc 1916)); State v. Haney, 277 S.W.2d 632, 635
(1955). In essence, the judgment acts as the judge’s “signature” on the writ of
execution, and the clerk’s purely ministerial act of issuing the writ merely effectuates
the court’s judgment.

                                          -7-
App. S.D. 1983).5 The Hallmark holding does not support the Coontses’ argument
because the agreement in Hallmark was not for a purchase money security interest as
it is here, and Missouri law makes a specific exception for this type of purchase in
Mo. Rev. Stat. § 513.140, which states:

      Personal property shall in all cases be subject to execution on a
      judgment against the purchaser for the purchase price thereof, and shall
      in no case be exempt from such judgment and execution, except in the
      hands of an innocent purchaser, for value, without notice of the
      existence of such prior claim for the purchase money.

For Larry to claim an interest in the property, he would have to be an “innocent
purchaser ... without notice of the existence of such prior claim for the purchase
money.” He cannot meet that burden here because he bought the first items as co-
signor with Tylene, and he was present during the state court actions when the courts
awarded Potts judgment against Tylene. Larry certainly was not an “innocent
purchaser” who did not have notice of the existence of Potts’ claim for the purchase
money, nor was he denied his due-process rights to be able to state a claim to the
property in the underlying action. Instead, the undisputed evidence shows that Larry
failed to intervene to state his claim to the property in the state court action or file a
replevin action or exemption claim thereafter to assert that the property was exempt
from execution under Mo. Rev. Stat. § 513.140. Furthermore, because Larry and
Tylene have shown no violation of a constitutional right, we affirm the District


      5
       In Hallmark, a widow sued for replevin from a creditor who repossessed
personal property from the widow’s house based on a credit agreement the deceased
husband signed prior to his death without his wife’s knowledge. The appellate court
ultimately determined that the wife owned the property by its entirety after her
husband died, and that she was denied due process either in the execution of the
original security interest or in the taking of the property after her husband’s death.

                                           -8-
Court’s grant of summary judgment to the sheriff, deputies, and Potts based on
qualified immunity for their actions in retrieving the items from the Coontses’ house.
See Merritt v. Reed, 120 F.3d 124, 126 (8th Cir. 1997) (reversing denial of summary
judgment after qualified immunity inquiry where plaintiff failed to show violation of
constitutionally protected right).

                                          IV.
       Next, the Coontses argue that the District Court erred in granting summary
judgment on their state-law claims. The District Court determined that the officers
had probable cause to arrest her, but they incorrectly charged her with the wrong
crime. There is a difference between unlawful arrest and charges named in error. See
United States v. Lester, 647 F.2d 869, 873 (8th Cir. 1981) (validity of arrest does not
turn on the suitability of the stated grounds for arrest but instead on whether the
officers had probable cause to believe that an offense had been or was being
committed); State v. Shaw, 81 S.W.3d 75, 78 (Mo. App. W.D. 2002) (test for
determining validity of arrest is whether the officer had actual probable cause to
arrest, not whether officer articulated the correct basis for the arrest).

       The parties and the District Court agreed that Tylene should not have been
charged with “interference with judicial process” because that violation only applies
to interfering with the service of process. Here, the deputies served Tylene with
process before she became combative; therefore, the violation does not apply to her
conduct. However, the officers had probable cause to arrest Tylene for her actions in
physically preventing the officers from performing a legal act and in assaulting them.
Therefore, the District Court did not err in granting summary judgment to the
appellees on the issue of “unlawful arrest.”

     Tylene next argues that the appellees maliciously prosecuted her for her
conduct in reacting to the levy. The District Court ruled against her on this claim,


                                         -9-
noting that the particular element of malice was missing from the six elements
constituting malicious prosecution noted in Sanders v. Daniel Int’l Corp., 682 S.W.2d
803 (Mo. 1984). The elements are: (1) the commencement of a prosecution against
the plaintiff; (2) the instigation by the defendant; (3) the termination of the
proceeding in favor of the plaintiff; (4) the want of probable cause for the
prosecution; (5) the defendant's conduct was actuated by malice; and (6) the plaintiff
was damaged. Id. at 806. A plaintiff must establish that the defendant acted either
with ill will toward the plaintiff or from any other improper motive. Id. Tylene failed
to prove that malice motivated the prosecution, and, thus, the District Court correctly
granted summary judgment to the appellees.

                                         V.
      The Coontses and their counsel appeal the assessment of Federal Rule of Civil
Procedure 11(b)(2)6 sanctions against counsel for asserting claims with no legal merit.


      6
          Federal Rule of Civil Procedure 11 states in pertinent part:

      (b) Representations to Court. By presenting to the court (whether by
      signing, filing, submitting, or later advocating) a pleading, written
      motion, or other paper, an attorney or unrepresented party is certifying
      that to the best of the person's knowledge, information, and belief,
      formed after an inquiry reasonable under the circumstances,
                                        ***
      (2) the claims, defenses, and other legal contentions therein are
      warranted by existing law or by a nonfrivolous argument for the
      extension, modification, or reversal of existing law or the establishment
      of new law;...

      (c) Sanctions. If, after notice and a reasonable opportunity to respond,
      the court determines that subdivision (b) has been violated, the court
      may, subject to the conditions stated below, impose an appropriate
      sanction upon the attorneys, law firms, or parties that have violated
      subdivision (b) or are responsible for the violation.


                                          -10-
Specifically, the District Court determined that the claims for malicious prosecution,
use of excessive force, and trespass were unsupported by the facts and law. The
District Court assessed sanctions against counsel in the amount of $2,000.



      (1) How Initiated.

                                         ***

      (B) On Court's Initiative. On its own initiative, the court may enter an
      order describing the specific conduct that appears to violate subdivision
      (b) and directing an attorney, law firm, or party to show cause why it has
      not violated subdivision (b) with respect thereto.

      (2) Nature of Sanction; Limitations. A sanction imposed for violation of
      this rule shall be limited to what is sufficient to deter repetition of such
      conduct or comparable conduct by others similarly situated. Subject to
      the limitations in subparagraphs (A) and (B), the sanction may consist
      of, or include, directives of a nonmonetary nature, an order to pay a
      penalty into court, or, if imposed on motion and warranted for effective
      deterrence, an order directing payment to the movant of some or all of
      the reasonable attorneys' fees and other expenses incurred as a direct
      result of the violation.

      (A) Monetary sanctions may not be awarded against a represented party
      for a violation of subdivision (b)(2).

      (B) Monetary sanctions may not be awarded on the court's initiative
      unless the court issues its order to show cause before a voluntary
      dismissal or settlement of the claims made by or against the party which
      is, or whose attorneys are, to be sanctioned.

      (3) Order. When imposing sanctions, the court shall describe the
      conduct determined to constitute a violation of this rule and explain the
      basis for the sanction imposed.


                                         -11-
       An award of sanctions under Rule 11 is reviewed by this court for an abuse of
discretion. Monterey Development Corp. v. Lawyer’s Title Ins. Corp., 4 F.3d 605, 610
(8th Cir. 1993); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). The
court has broad discretion in the choice of sanctions. See Cooter & Gell, 496 U.S. at
400 (citing Advisory Committee Note on Rule 11, 1983 Amendment). Due process
is satisfied if the sanctioned party has a real and full opportunity to explain its
questionable conduct before sanctions are imposed. Chrysler Corp. v. Carey, 186
F.3d 1016, 1023 (8th Cir. 1999). Rule 11 requires that an attorney conduct a
reasonable inquiry of the factual and legal basis for a claim before filing. Miller v.
Bittner, 985 F.2d 935, 938 (8th Cir. 1993) (citing O’Connell v. Champion Int’l Corp.,
812 F.2d 393, 395 (8th Cir. 1987)). To constitute a reasonable inquiry, the prefiling
investigation must uncover a factual basis for the plaintiff's allegations, as well as a
legal basis. Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991).
Whether the attorney's inquiry is reasonable may depend on factors such as whether
counsel had to rely on a client for factual information, or whether the attorney
depended on forwarding counsel or another member of the bar. Fed.R.Civ.P. 11,
Notes of Advisory Committee, 1983 Amendment and 1993 Amendment. The District
Court must determine "whether a reasonable and competent attorney would believe
in the merit of an argument." Miller, 985 F.2d at 939 (quoting Dodd Ins. Servs. v.
Royal Ins. Co. of America, 935 F.2d 1152, 1155 (10th Cir.1991)).

      We hold that the District Court did not abuse its discretion in assessing
sanctions against counsel for bringing and continuing to assert the three meritless
claims of malicious prosecution, excessive force, and trespass. As the District Court
noted, Missouri law does not warrant these claims under the facts of this case, and
counsel’s assertions rise to the level of frivolous arguments that do not seek an
extension of any of those legal theories. The District Court’s well-reasoned opinion
highlights the fallacies in counsel’s claims that these causes of action were supported
by the evidence. For example, the court noted that counsel asserted the claim for
excessive force, arguing that the officers did not have probable cause to arrest Tylene

                                         -12-
for her actions during the levy on the property. However, the undisputed facts show
that Tylene kicked, hit, and attempted to bite the officers when they tried to retrieve
the property, and she also destroyed the television by throwing an object through the
screen. On appeal, counsel stated its disagreement with the District Court’s
determination, but counsel neither demonstrated in its appellate brief nor during oral
argument that the District Court’s sanction was an abuse of discretion. Consequently,
we affirm the District Court in its assessment of the $2,000 fine against the Coontses’
counsel.
       Affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -13-
