Home / Fulltext Opinions / Supreme Court of Virginia / HUDSON v. LANIER, ET AL.



February 27, 1998
Record No. 971006





Robert G. O’Hara, Jr., Judge Designate

Present: All the Justices

The primary issue in this appeal is whether the trial court
erred in ruling that a plaintiff in a malicious prosecution
action failed to prove the element of malice.

We state the evidence in the light most favorable to Frances
D. Lanier and Christopher M. Lanier, the prevailing parties in
the trial court. Horton v. Horton, 254 Va. 111, 115, 487
S.E.2d 200, 203 (1997); Tuomola v. Regent Univ., 252 Va.
368, 375, 477 S.E.2d 501, 505 (1996). On September 3, 1989,
Allyson Hudson, the daughter of David S. Hudson, was severely
injured when a tree fell on her while she was playing at the
Surry County home of her maternal grandparents, Joseph S. Lanier,
Sr., and Frances D. Lanier. The day after the incident, Frances
and her son, Christopher M. Lanier, went to Hudson’s home, where
Hudson informed them that he was planning to sue the elder
Laniers to recover damages for Allyson’s injuries. Hudson asked
Frances and Christopher to leave his home and called the
"county sheriff" when they failed to leave. When the
"sheriff’s car" entered the driveway, Frances and
Christopher left the house.

Five days later, Hudson went to the home of Joseph and Frances
to take photographs of the area where Allyson was injured. Joseph
and Frances were not home at the time, but Christopher was
present. Although Christopher asked Hudson to leave, Hudson
remained on the Laniers’ property. Christopher then called his
parents to inform them that Hudson was on their property.
Christopher spoke with Frances, who asked that he again tell
Hudson to leave the premises.

As instructed by his mother, Christopher again told Hudson to
leave the property. Hudson left the Laniers’ property at that
time, but he continued to take photographs from an adjacent
property. Christopher then asked Hudson to leave the neighbor’s
property, and Hudson responded, "This is not your
property." Hudson cursed Christopher and made an obscene
gesture before leaving the adjacent property.

Shortly thereafter, Christopher, under instructions from
Frances, initiated a criminal complaint against Hudson for
trespass on the Laniers’ property. A warrant for Hudson’s arrest,
alleging trespass in violation of Code ? 18.2-119, was issued.
Five days later, Christopher initiated another criminal complaint
against Hudson for "curse and abuse," in violation of
Code ? 18.2-416. An arrest warrant later was issued against
Hudson on this charge. Hudson was tried and acquitted on both

Hudson filed a motion for judgment against Frances and
Christopher alleging malicious prosecution. At a bench trial,
Frances testified that she asked Christopher to obtain an arrest
warrant for trespass because the "situation had gotten
hostile." Frances also stated, "We could see we had to
have somebody settle it. We had to have a judge decide it."
Frances explained that she was concerned because she thought that
Hudson was harassing the family and "bad things happen when
people have tempers."

Christopher testified that he initiated the criminal complaint
for trespass because he wanted an independent party to settle the
family’s problem, and he wished to see "justice be
done." Christopher also explained that he initiated the
complaint for "curse and abuse" because he thought
that, at trial on the trespass charge, he would be asked why he
had not taken any action in response to Hudson’s cursing.

At the conclusion of the evidence, the trial court held that
Hudson failed to prove the element of malice by a preponderance
of the evidence. Based on this ruling, the court did not reach a
determination whether there was probable cause to support the
criminal charges. The court later entered an order dismissing the
action with prejudice.

Hudson contends that the trial court erred in ruling that he
failed to prove the element of malice. He asserts that the
evidence showed that Frances and Christopher initiated the
criminal complaints against him for reasons other than a desire
to see justice done.[1]

In response, Frances and Christopher argue that Hudson failed
to meet his burden of proving that their controlling motive in
initiating the criminal complaints was improper. They also argue
that there was ample evidence showing that their actions were not
motivated by malice, but were based on a desire to resolve the
hostilities among the parties.

In an action for malicious prosecution, the plaintiff bears
the burden of proving by a preponderance of the evidence that the
prosecution was (1) malicious; (2) instituted by, or with the
cooperation of, the defendant; (3) without probable cause; and
(4) terminated in a manner not unfavorable to the plaintiff. Lee
v. Southland Corp.
, 219 Va. 23, 26, 244 S.E.2d 756, 758
(1978); Bain v. Phillips, 217 Va. 387, 393, 228 S.E.2d
576, 581 (1976); Gaut v. Pyles, 212 Va. 39, 41, 181 S.E.2d
645, 646-47 (1971). In the context of a malicious prosecution
action, malice is defined as any controlling motive other
than a good faith desire to further the ends of justice, enforce
obedience to the criminal laws, suppress crime, or see that the
guilty are punished. Freezer v. Miller, 163 Va. 180, 206,
176 S.E. 159, 169 (1934).

The existence of malice is generally a question to be resolved
by the fact finder from all the circumstances in the case. Lee,
219 Va. at 27, 244 S.E.2d at 759; Gaut, 212 Va. at 42, 181
S.E.2d at 647; see Freezer, 163 Va. at 208, 176
S.E. at 170. We review the sufficiency of the evidence of malice,
and the trial court’s judgment that Hudson failed to meet his
burden of proof on this issue, under the established principle
that the trial court’s judgment will be upheld unless it is
plainly wrong or without evidence to support it. Board of
Supervisors v. Omni Homes, Inc.
, 253 Va. 59, 65, 481 S.E.2d
460, 463, cert. denied, ___ U.S. ___, 118 S.Ct. 58
(1997); Tuomala, 252 Va. at 375, 477 S.E.2d at 506.
Applying this standard, we conclude that the evidence supports
the trial court’s judgment that Hudson failed to prove that
either defendant acted with malice in initiating the

The testimony of both Frances and Christopher supports this
determination. As stated above, both testified that they were
concerned that Hudson’s conduct had escalated existing family
hostilities, and that the intervention of a neutral party was
necessary to prevent further confrontations from occurring.
Christopher also stated that he wanted to see "justice be

While Frances testified that she did not want Hudson to gather
evidence on the property to use against her in a lawsuit, the
balance of the testimony supports the court’s implicit finding
that this concern was not the controlling motive for initiating
the criminal complaints. Thus, the record supports a conclusion
that Hudson failed to prove that either Frances or Christopher
had a controlling motive other than to "further the ends of
justice, enforce obedience to the criminal laws, suppress crime,
or see that the guilty are punished." Freezer, 163
Va. at 206, 176 S.E. at 169.

Hudson argues, nevertheless, that the trial court’s judgment
must be reversed because the court applied an erroneous principle
of law. When explaining his decision to the parties, the court
stated, "I’m unable to find a requisite malice between
members of a family." Hudson contends that this statement
indicates that the court believed that family members are legally
incapable of acting with malice toward one another.

We disagree with Hudson’s contention that the trial court’s
comment requires reversal of this case. While the court’s comment
is not clear on its face, the substance of such a comment is not
relevant to our examination of the sufficiency of the evidence of

For these reasons, we will affirm the trial court’s judgment.







Hudson also argues that the trial court erred in questioning a
witness concerning the witness’ religious beliefs and practices.
We do not consider this assignment of error, however, because
Hudson failed to object to the trial court’s questioning of the
witness or to the content of the questions. Rule 5:25.