Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiffs alleged defendants presented false information about alleged zoning violations, which resulted in criminal charges that were later dismissed, the circuit court erred by dismissing plaintiffs’ malicious prosecution claim but correctly sustained a demurrer regarding an abuse-of-process claim.
Criminal matter dismissed
Mathews County notified the Eubanks of two zoning violations. The first alleged a four-foot expansion of a non-conforming structure without a permit. The second stated that a structure was improperly expanded into a buffer zone.
The Eubanks could remedy the situation by having a licensed surveyor provide a plat showing there was no expansion of the house’s original footprint and no encroachment on the buffer zone.
The notice also provided that if the situation was not corrected, criminal charges could be filed against them.
The Eubanks said there were no violations and submitted a letter from a surveyor stating the house’s footprint had not changed since 1966 and that the north side of the house “appears to be consistent with the original survey from 1966. (emphasis added).”
Later, the county initiated criminal proceedings but all charges were dismissed.
Civil suit
The Eubanks sued for malicious prosecution and abuse of process. “The complaint alleged that Mathews County, and one of the individual defendants in particular, was interested in acquiring property to increase public access to the water in the specific area where the Eubanks property is located.
“To accomplish this goal, the County Employees began to research zoning violations to use them as a pretext ‘to force [the Eubanks] to tear down their home.’ This would reduce the property’s value, and then, with a lowered value, Mathews County could acquire the land at reduced cost via eminent domain.
“The notice and criminal summons presupposed that there was an unpermitted expansion of the house in 2011 or 2012. … According to the Eubanks, the house’s footprint is the same as it was in 1966.
“Further, the alleged encroachment originated from ‘a sketch drawing’ by the Commissioner of the Revenue, who is not a licensed surveyor. According to the Eubanks, an employee of the County’s Planning and Zoning Department modified this sketch drawing to increase the alleged encroachment.
“The Eubanks allege that the letter from the licensed surveyor, along with the original 1966 survey, provided ‘more than enough reasonable evidence’ to establish that the notice of violation was without foundation. Nevertheless, the Eubanks allege, the County Employees presented ‘knowingly inaccurate’ evidence to the magistrate to obtain criminal charges against the Eubanks.
“In response, the County Employees filed a demurrer and a plea in bar. The County Employees argued that the complaint should be dismissed because, by failing to timely appeal the decision of the zoning violation, the decision of the zoning administrator became a ‘thing decided.’ The County Employees also alleged that the allegations of the complaint were legally insufficient to support a claim for malicious prosecution or for abuse of process.”
“The circuit court … dismissed the case with prejudice.”
Inapplicable doctrine
“A person aggrieved by a decision of the zoning administrator has the right to appeal to the board of zoning appeals. … ‘If this mandatory appeal is not timely filed, the administrative remedy has not been exhausted and the zoning administrator’s decision becomes a “thing decided” not subject to court challenge.’ … The ‘thing decided’ doctrine ensures that zoning decisions are appealed through the proper channels. …
“Here, the Eubanks are not pursuing an untimely challenge to a land use decision. Instead, they are alleging that the County Employees committed intentional torts against them. The ‘thing decided’ doctrine simply does not apply.”
Malicious prosecution
“A plaintiff alleging malicious prosecution must plead and prove by a preponderance of the evidence that the prosecution was (1) malicious, (2) instituted by or with the cooperation of the defendant(s), (3) without probable cause, and (4) terminated in a manner not unfavorable to the plaintiff. …
“The adequacy of the complaint with respect to elements (1), (2), and (4) is not in dispute. … The briefs focus on whether the County Employees acted with probable cause in obtaining criminal warrants against the Eubanks. …
“The County Employees point to the fact that the Eubanks did not remedy the zoning violation in the manner contemplated by the notice. The notice allowed the Eubanks to remedy the violation by, among other things, providing a ‘survey’ from a surveyor licensed in Virginia. Instead, the Eubanks supplied a letter – not a proper survey – from a Virginia licensed surveyor. Therefore, the County Employees reason, they had probable cause to advance the case for criminal prosecution.
“The gravamen of the Eubanks’ allegations is that there never was any real probable cause because the encroachment had existed since 1966 and was, therefore, not actionable. Additionally, the purported unpermitted expansion of the house in 2011 and 2012 did not happen.
“Moreover, the Eubanks allege, the County Employees knew all of this, or should have known it, based on the surveyor’s letter and the original survey, but they nevertheless proceeded to initiate criminal charges.
“We conclude that the allegations of the complaint with respect to probable cause were for the factfinder to resolve. Accordingly, we reverse the circuit court’s dismissal of the malicious prosecution claim.”
No abuse
“To prevail in a cause of action for abuse of process, a plaintiff must plead and prove: “(1) the existence of an ulterior purpose; and (2) an act in the use of the process not proper in the regular prosecution of the proceedings. …
“The Eubanks allege that, after instituting criminal proceedings, the County Employees met with the Commonwealth’s Attorney and provided him with documentary evidence they knew to be false.
“According to the Eubanks, the County Employees also concealed the letter from the surveyor that the Eubanks had provided to the County, and they did not reveal the original plat, which showed the house occupying the same footprint today as it did in 1966.
“The Eubanks do not point to any particular legal process that the defendants abused. Meeting with the Commonwealth’s Attorney does not constitute legal process within the scope of this tort. Neither does withholding adverse evidence.
“Consequently, the Eubanks’ claim for abuse of process fails as a matter of law.”
Affirmed in part, reversed in part and remanded.
Eubanks, et al. v. Thomas, et al., Record No. 201118 (McCullough) Aug. 5, 2021, Mathews County Circuit Court (Shaw). Brenton J. Bohannon for appellants. Julie S. Palmer for appellees. VLW 021-6-059, 10 pp.
