Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff has sued defendant, his ex-wife, for malicious prosecution arising from five criminal warrants she swore out against him for trespass, and for a protective order issued against him, her demurrer is sustained.
Plaintiff bases his complaint on defendant’s alleged “false statements” but has not pleaded sufficient facts to support the allegation.
Defendant’s motion craving oyer of documents generated in the underlying matters is dismissed because these documents are not subject to oyer.
Overview
Plaintiff pleads that on Dec. 27, 2017, defendant swore out five criminal warrants against him for trespass, based in incidents occurring between August 2012 and January 2016. He also asserts that defendant arranged to have him arrested two days later at an airport in the presence of his girlfriend and her family.
He further pleads that on Feb. 15, 2019, she swore out a protective order and a warrant for assault and battery for events occurring that day.
Plaintiff’s complaint alleges that all of this was based on defendant’s use of false information and falsely representing facts. But he does not quote from “any criminal complaints or other documents defendant may have signed before a magistrate to obtained the warrants or the protective order,” and has not provided them as exhibits with his complaint. Plaintiff alleges all charges and the protective order were “ultimately dismissed.”
Defendant’s demurrer and motion craving oyer are before the court.
Demurrer
Defendant has demurred on several grounds. The demurrer is sustained because plaintiff has not pleaded sufficient facts to support his assertions that defendant’s “statements, whatever they were, were false. … The plaintiff does allege she testified falsely, but he does not state the particulars of the falsity.” See Craft v. Moloney Belting Co., 117 Va. 480 (1915).
Oyer
Defendant has craved oyer of “statements she made to the magistrate, the protective order and the order dissolving the protective order.” Plaintiff argues the motion should be denied under Judge Oblon’s opinion in Antigone v. Taustin, 98 Va. Cir. 213 (Fairfax 2018). The judge ruled that oyer is available only for deeds and documents relating probate matters.
Oyer is a “common law procedure of medieval origin” and “has evolved in Virginia in the last century, and for an ancient procedure it has recently attracted much attention.”
A survey of other reported circuit court decisions reveals that most of them restrict oyer “to documents that form the basis of the complaint. Merely referring to a document in a complaint will not justify oyer. …
“[A]n action for malicious prosecution is not based on documents. It is based on the defendant’s knowledge and the evidence she possesses when she initiates the prosecution, her motive, and the conclusion of the prosecution in a manner favorable to the plaintiff. The criminal complaints, the petition for a protective order, the warrants, and the protective order may be evidence, but that does not make them subject to oyer.”
Demurrer sustained. Motion denied.
Hartline v. Hartline. CL19-8159, Nov. 14, 2019; Norfolk Cir. Ct. (Martin). Christy L. Murphy, Frank A. Edgar for the parties. VLW 019-8-107, 7 pp.
