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Jury’s damages award upheld

Virginia Lawyers Weekly//April 10, 2023

Jury’s damages award upheld

Virginia Lawyers Weekly//April 10, 2023

Where appellant sued his estranged wife for malicious prosecution and negligence after she falsely accused him of assaultive behavior, the trial court correctly denied his motion to set aside the $24,750 jury verdict, which was based on his argument that had the court granted summary judgment in his favor, the jury would have awarded him a larger amount.


Armstrong, the appellant and Roadcap, the appellee, were married but living separately. Roadcap was pregnant with Armstrong’s child. She went to Armstrong’s house to discuss their marital situation. They fought. Roadcap went to a neighbor’s house and called the police. When they arrived, “Roadcap alleged that Armstrong had prevented her from leaving, spit in her face, bear-hugged her in the driveway, and took her keys so that she could not leave in her car.”

Armstrong was arrested and charged with two felonies and two misdemeanors. He was jailed, placed on probation and complied with his bond restrictions. Attorney Green, Armstrong’s friend, represented him in the criminal matters.

“Roadcap subsequently recanted the allegations[.] … [T]he circuit court nolle prossed the criminal charges against Armstrong … [and] … expunged the charges from Armstrong’s record.”

Armstrong sued Roadcap for, among other things, malicious prosecution and negligence. “At trial, Armstrong presented evidence that he paid Green $50,075 for Green’s legal services during Armstrong’s criminal proceedings.

“Armstrong submitted into evidence a ‘receipt of payments’ for Green’s legal services showing that the payments included a wire payment of $25,575 to a car dealer for a vehicle that Armstrong bought for Green as partial payment for Green’s legal services.

“The receipt listed the dates of the payments, but did not itemize the specific legal services provided by Green.”

Armstrong’s expert testified about $609,084 in lost profits from Armstrong’s business.

“At the close of Roadcap’s evidence, Armstrong moved for summary judgment on liability, arguing that all the evidence supported a finding that Roadcap’s allegations … were false.

“The circuit court denied the motion. Armstrong renewed his motion for summary judgment at the end of the trial, which the circuit court also denied.

“The jury ultimately found Roadcap liable on both the malicious prosecution and negligence counts. The jury awarded Armstrong $24,750 in damages on the negligence count and no damages on the malicious prosecution count.”

The court denied Armstrong’s motion to set aside the verdict. He appealed.

Motion to set aside

“Armstrong had the burden to prove the damages resulting from Roadcap’s negligence and malicious prosecution. …

“The circuit court found that the evidence was sufficient to support the jury’s verdict because Roadcap ‘poked significant holes’ in Hitchcock’s testimony and presented the jury with alternative reasons as to why Armstrong’s profits might have declined, including the stress of a marital separation, the pending arrival of a new child, and the declining health of a family member.

“Moreover, as the circuit court noted, Hitchcock’s conclusions greatly relied on information Armstrong provided to him for trial. The jury was free to weigh the credibility of Hitchcock’s testimony on damages, as ‘the jury are the sole judges of the weight and credibility of the evidence and have the right to discard or accept the testimony, or any part thereof, of any witness when considered in connection with the whole evidence before them.’ …

“As to Armstrong’s claim for reimbursement of Green’s attorney fees, the circuit court explained that ‘the jury did not have to believe the veracity of Mr. Green, his billing in the case, or [Armstrong].’

“Armstrong offered no formal invoice, but rather a general receipt of the date of payments, and did not itemize the specific legal services Green performed. Rather, the receipt generally stated that Green provided ‘services in regards to abduction, domestic assault and battery and larceny, and preventing all charges.’

“The receipt also stated that Green ‘received a 2009 Lexus LS 460 as part of payment.’ As the circuit court noted, the partial payment of fees through the purchase of a vehicle was ‘unusual.’

“Thus, the circuit court correctly concluded that ‘[t]he jury was free to determine that no credible evidence was presented for which they could find a dollar figure.’

“Accordingly, we hold that the circuit court did not err in denying Armstrong’s motion to set aside the jury verdict.”

Summary judgment

“Although the jury ultimately found Roadcap liable on both the malicious prosecution and negligence counts, Armstrong argues that the circuit court’s denial of his motions for summary judgment was not harmless error because ‘[t]he deliberative process of a jury is unknowable and undoubtedly would have been impacted had the trial court granted summary judgment and only instructed them on damages.’

“We will assume, arguendo, that the circuit court erred in denying Armstrong’s motions for summary judgment. We will also assume, arguendo, that had the circuit court granted summary judgment, that decision would have influenced the jury to award Armstrong a greater amount of damages.

“Armstrong’s argument nevertheless still fails because it incorrectly assumes that a trial court’s grant of summary judgment on liability is a legitimate factor that the jury may consider in determining the amount of damages to award a plaintiff.

“Had the circuit court’s imprimatur on liability influenced the jury to award Armstrong a greater amount of damages, such influence would have been entirely improper.

“An appellant cannot claim that an alleged error is not harmless by arguing that, had the error not been committed, the jury would have been influenced by an improper factor that had no relevance to the jury’s decision in the first place. …

“Therefore, even if the circuit court erred in denying Armstrong’s motions for summary judgment, we hold that such error was harmless.”


Armstrong v. Roadcap, Record No. 0347-22-3, March 28, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of Rockingham County (Albertson). Wyatt B. Durrette Jr., Christine A. Williams for appellant. No brief or argument for appellee. VLW 023-7-124, 8 pp.

VLW 023-7-124

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