861 S.E.2d 397
Va.2021Background
- Candy and Mark Eubank own a house (built 1949) in Mathews County; in 2015 they received a zoning violation notice alleging an unpermitted 4-foot expansion and encroachment into a buffer area.
- The notice allowed cure by providing a licensed survey plat; the Eubanks instead submitted a letter from a Virginia licensed surveyor stating the footprint "appears to be consistent" with a 1966 survey but did not supply a formal survey.
- The County later obtained criminal warrants alleging a 2011–2012 expansion and lack of permits; those charges were dismissed or nolle prossed.
- The Eubanks sued the county administrator and two planning employees for malicious prosecution and abuse of process, alleging the defendants fabricated or distorted evidence to force demolition and enable acquisition by eminent domain.
- The circuit court sustained the defendants' demurrer and dismissed the complaint with prejudice; the Supreme Court of Virginia reversed dismissal as to malicious prosecution, affirmed dismissal as to abuse of process, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of the "thing decided" doctrine to tort claims | Eubanks: doctrine does not bar tort claims based on intentional misconduct | County: failure to timely appeal zoning decision makes administrator decision final and bars collateral attack | Court: doctrine inapplicable to malicious prosecution/abuse of process claims; reversed on this ground |
| Sufficiency of malicious prosecution claim (probable cause) | Eubanks: no probable cause because alleged expansion never occurred and encroachment dates to 1966; defendants knew or should have known this | County: Eubanks failed to follow cure procedure (no formal survey), so defendants had probable cause to seek prosecution | Court: pleadings sufficiently allege lack of probable cause and intent; probable cause is factual question for factfinder; reversal of dismissal |
| Sufficiency of malicious prosecution claim (malice, termination, initiation) | Eubanks: alleged ulterior motive (reduce value for eminent domain), defendants initiated prosecution and charges terminated favorably | County: challenged legal sufficiency | Court: allegations on malice, initiation/cooperation, and favorable termination were adequate at demurrer stage |
| Sufficiency of abuse of process claim | Eubanks: defendants misused criminal process by withholding exculpatory evidence and presenting false documents to prosecutor | County: meetings with prosecutor and withholding evidence are not misuse of a specific legal process | Court: abuse of process requires misuse of a particular judicially sanctioned procedure after issuance; allegations fail to identify abused process; claim dismissed and affirmed |
Key Cases Cited
- Vulcan Materials Co. v. Board of Supervisors, 248 Va. 18 (1994) (administrative exhaustion and "thing decided" doctrine in land-use context)
- Lilly v. Caroline County, 259 Va. 291 (2000) (failure to timely appeal makes administrative decision final)
- O'Connor v. Tice, 281 Va. 1 (2011) (elements and stringency of malicious prosecution claims)
- Lewis v. Kei, 281 Va. 715 (2011) (malicious prosecution principles)
- Giant of Va., Inc. v. Pigg, 207 Va. 679 (1967) (definition of probable cause for prosecution)
- Lee v. Southland Corp., 219 Va. 23 (1978) (probable cause is jury question when facts disputed)
- Donohoe Constr. Co. v. Mount Vernon Assocs., 235 Va. 531 (1988) (elements of abuse of process and distinction from malicious prosecution)
- Ely v. Whitlock, 238 Va. 670 (1989) (post-filing use of depositions as example of abuse of process)
- Reilly v. Shepherd, 273 Va. 728 (2007) (policy disfavoring malicious prosecution suits)