Civil No.: CL19-8159
EVERETT A. MARTIN JR. JUDGE Christy L. Murphy, Esq.
Bischoff Martingayle, P.C.
208 East Plume Street, Suite 247
Norfolk, Virginia 23510 Frank A. Edgar, Esq.
Goldstein, Edgar & Reagan
741 J. Clyde Morris Boulevard
Newport News, Virginia 23601 Dear Ms. Murphy and Mr. Edgar:
The parties are divorced. To avoid confusion, I shall refer to them by their status in this case, not in the underlying cases out of which this malicious prosecution action arises.
The plaintiff alleges the defendant swore out five criminal warrants against him for trespass, Code of Virginia § 18.2-119, on or about December 27, 2017. The dates of the offenses were between August of 2012 and January of 2016. He further alleges the defendant arranged to have him arrested on these charges two days later at the airport in the presence of his girlfriend and her family; that she filmed the arrest; that she sent copies of the film to his family members "telling them that he and his 'whore' wife (sic) needed to feel pain." ¶8.
The statute of limitations for most misdemeanors, including trespass, is one year. Code § 19.2-8. No one knows why a magistrate issued the warrants after the limitations period had clearly expired.
He also alleges the defendant swore out a protective order and a warrant for assault and battery against him on or about February 15, 2019, for events occurring that day.
He alleges throughout the complaint that the defendant "used false information" and "falsely represent[ed] facts." He does not state what the false information and facts are. He does not quote from any criminal complaints or other documents the defendant may have signed before a magistrate to obtain the warrants or the protective order, nor does he attach them as exhibits to the complaint. He pleads the criminal charges and protective order were all ultimately dismissed.
The defendant has demurred on several grounds and craved oyer.
Most of the briefs and the arguments were on this issue, but upon further reflection, I have decided it is premature to rule on it because the plaintiff does not quote from any documents or testimony in his complaint. He simply alleges whatever statements the defendant made or information she provided was false.
There are four bases for the demurrer concerning probable cause. First are bald statements that probable cause existed. This is a trial issue.
Second, with respect to the protective order, she alleges there was probable cause as a judge of the Juvenile and Domestic Relations District Court issued a protective order after a hearing with both parties present. The complaint, however, states the protective order petition was dismissed after a full trial on the merits on May 9, 2019. On demurrer, I cannot consider facts stated in the demurrer that are not in the complaint.
The defendant has not demurred to an action for malicious prosecution based on a civil matter for which the plaintiff was not arrested or his property seized.
Third, she claims the criminal charges and the protective order were issued by a magistrate upon a finding of probable cause. However, the "issuance of the warrant does not conclusively prove probable cause because of the very existence of the law permitting malicious prosecution actions . . . ." Niese v. Klos, 216 Va. 701, 704, 222 S.E.2d 798, 801 (1976). The same rule should apply to a magistrate's issuance of an emergency protective order.
The remaining ground is the failure to plead sufficient facts. I partly sustain the demurrer on this ground. The plaintiff pleads insufficient facts to demonstrate the lack of probable cause for the 2017 criminal charges and the protective order.
With respect to the 2019 assault and battery charge, he does allege a fact: an Old Dominion University police officer found no probable cause to arrest him. ¶12. With respect to the 2017 criminal charges, the only fact he states is: "The magistrate released Jeffrey with no bond once he heard the true story about the alleged crimes." ¶9. Release by a magistrate after arrest does not indicate a lack of probable cause to believe the accused committed an offense; rather, it shows a lack of probable cause to believe (1) the accused will not appear for trial, and (2) his liberty will be an unreasonable danger to himself or the public. Code § 19.2-120 (A). For the protective order and the 2017 criminal charges, he pleads false representations (discussed infra) and "there was no probable cause." The latter is a legal conclusion. Lewis v. Kei, 281 Va. 715, 723, 708 S.E.2d 884, 890 (2011).
The defendant claims the plaintiff has not pleaded sufficient facts to allege malice and thus support his claim for punitive damages. I find the allegations of paragraph 8 of the complaint, briefly summarized above, are sufficient to plead malice.
The defendant also claims the plaintiff has not pleaded sufficient facts to support his allegation that her statements, whatever they were, were false. I agree. The plaintiff does allege she testified falsely, but he does not state the particulars of the falsity.
In Craft v. Moloney Belting Co., 117 Va. 480, 85 S.E. 486 (1915), an action for malicious prosecution, the trial court sustained a demurrer. Two of the issues on appeal were whether the declaration set out conclusions of law or fact and did the declaration need to set out the statements the defendants allegedly knew to be false. As pertinent to this case, omitting the discussion of suborning false statements, the Court held:
As it seems to us, the charge in the declaration here that the defendants, by means of evidence which they knew to be false, caused the plaintiff to be convicted, is merely a conclusion of law to be drawn from the facts . . . .
By electing to set up that the conviction was obtained by testimony which the defendants knew to be false, the plaintiff brought his case within the rules governing an action for false representations, and in that class of cases it is well settled the false representations must be set out . . . .
It might well be asked in this case, as there is nothing in the
declaration to give that information, . . . What were the false statements? All which information the defendants were entitled to, and those facts were essential, not only to the plaintiff's right of recovery, but to his right to maintain his action.117 Va. at. 482-84, 85 S.E. at 487. I sustain the demurrer on this ground.
Motion Craving Oyer
The defendant has craved oyer of the statements she made to the magistrate, the protective orders, and the order dissolving the protective order. The plaintiff argues I should deny the motion for the reasons given in Antigone v. Taustin, 98 Va. Cir. 213 (Fairfax 2018). There, Judge Oblon held oyer could only be had, absent agreement of the parties, of deeds and letters of probate and administration and supplements to documents related to deeds or probate attached to the complaint.
In Welch v. McDonald, 85 Va. 500, 8 S.E. 711 (1888), an action for breach of a construction contract, the jury returned a verdict for the plaintiff and the defendants appealed. One of the errors assigned was the overruling of their demurrer. The Supreme Court ruled:
The defendants did not crave oyer of the contract, but demurred to the declaration and to each count thereof . . . . The radical difference between the contract declared on, and the one really made and put in evidence, did not then appear; and the demurrer was properly overruled as to these counts. Had oyer of the contract been craved, and the true contract made known to the court, the demurrer to these counts ought to have been, and, doubtless, would have been sustained.85 Va. at 504, 8 S.E. at 713.
Two cases less than a decade later did hold that oyer of papers mentioned in a pleading could only be craved of deeds and letters of probate and administration and not to other writings. Grubbs v. National Life, etc., 94 Va. 589, 591, 27 S.E. 464, 465 (1897); Langhorne v. Richmond City Ry. Co., 91 Va. 369, 372, 22 S.E. 159, 160 (1895). Neither case mentioned Welch. In Burton v. Seifert & Co., 108 Va. 338, 350, 61 S.E. 933, 938 (1908), a suit on a construction payment bond, the Court held the circuit court was correct to deny oyer of the contract because the action "was not upon the contract;" the Court did not rule that oyer did not lie for a contract. However, the Supreme Court restated the holdings of Grubbs and Langhorne in Smith v. Wolsiefer, 119 Va. 247, 250, 89 S.E. 115, 116 (1916), where it observed it was "unusual" for a defendant to have craved oyer of a lease, but that all parties had consented. It might be concluded that a century ago the law was muddled concerning which documents were subject to oyer.
Oyer is a common law procedure of medieval origin, and the common law evolves; it is not chiseled in stone. Oyer has evolved in Virginia in the last century, and for an ancient procedure it has recently attracted much attention.
There are references to oyer as early as the 14th Century, I Comyns' Digest, "Abatement," I. 22 (1780) (referring to the 22nd year of Edward III - 1349); XVI Viner's Abridgment, "Oyer of Records, Deeds &c," (B) 7 (1743) (referring to the 3rd year of Henry IV - 1401). The Common Law Procedure Act of 1852, 15 & 16 Vict., c. 76, abolished oyer in England. It thrives in Virginia.
"At no time has the common law stood still . . . . But never has the law been exempt from the ceaseless alteration to which all human creations are subject." J. H. Baker, An Introduction to English Legal History 195-96 (4th ed. 2002).
In Culpepper National Bank v. Morris, 168 Va. 379, 191 S.E. 764 (1937), the bank was a judgment creditor of the heirs at law of a decedent. In a suit devisavit vel non, a jury returned a verdict against the validity of a will, but the court set aside the verdict based upon a compromise between the parties to admit the will to probate. The judgment debtors of the bank took nothing under the will.
The bank brought suit to declare the order setting aside the jury verdict void as to the lien creditors of the heirs. The defendants in the bank's suit claimed oyer of the complete record of the first suit and demurred. The trial court sustained the demurrer, and the bank appealed the trial court's grant of oyer.
The Supreme Court noted the bank described the proceedings in the first suit, the evidence introduced, and other aspects of the case, but filed only a small part of the record as exhibits, and then asked the trial court to accept its construction of the entire record by inspection of those parts it chose to introduce. The Supreme Court would not have it and affirmed:
No intelligent construction of any writing or record can be made unless all of the essential parts of such paper or record are produced. A litigant has no right to put blinkers on the court and attempt to restrict its vision to only such parts of the record as the litigant thinks tend to support his view. When a court is asked to make a ruling upon any paper or record, it is its duty168 Va. at 382-83, 191 S.E. at 765.
to require the pleader to produce all material parts.
"3. either of two leather straps on a bridle, to prevent a horse from seeing sideways; a blinder," The Random House Dictionary of the English Language (1967). --------
In the more recent cases involving oyer to reach the Supreme Court, it appears the plaintiffs agreed to oyer, but in several the circuit courts had sustained demurrers and dismissed the actions and the Supreme Court affirmed. Hechler Chevrolet v. General Motors Corporation, 230 Va. 396, 337 S.E.2d 744 (1985) (agreements between the parties); Ward's Equipment v. New Holland North America, 254 Va. 379, 493 S.E.2d 516 (1997) (dealer agreement); Pulte Homes v. Parex, 265 Va. 518, 579 S.E.2d 188 (2003) (warranty); Dodge v. Randolph-Macon, 276 Va. 1, 661 S.E.2d 801 (2008) (various documents). Had the circuit courts "short-circuited" litigation through an improper procedure, one would expect the Supreme Court to have commented, especially in Ward's Equipment, where the plaintiff agreed to oyer in the circuit court but on appeal claimed it was error for the circuit court to have considered the document produced.
Most of the reported Virginia circuit court opinions on motions craving oyer restrict the procedure to documents that form the basis of the complaint. Merely referring to a document in a complaint will not justify oyer. Nor is oyer a substitute for Rule 4:9. Marios v. VEPCO, CL2019-1068 (Fairfax 2019); PM Lube v. County of Loudon, 100 Va. Cir. 395 (Loudon 2018); Home v. Browder, 91 Va. Cir. 77 (Prince George 2015); Colonna's Shipyard v. Alpha Pipe Co., 2012 WL 6755957 (Norfolk 2012); Penney v. Brock, 84 Va. Cir. 459 (Accomack 2012); Resk v. Roanoke County, 73 Va. Cir. 272 (Roanoke 2007); Virginia Beach Rehab Specialists v. Augustine Medical, 58 Va. Cir. 379 (Norfolk 2002); Colinsky Consulting v. Holloway, 57 Va. Cir. 403 (Norfolk 2002); Ragone v. Waldvogel, 54 Va. Cir. 581 (Roanoke 2001); Sjolinder v. American Enterprise Solutions, 51 Va. Cir. 436 (Charlottesville 2000); Spiller v. James River Corporation, 32 Va. Cir. 300 (Richmond 1993); Charter Communities v. Lees Hill Partnership, 31 Va. Cir. 417 (Spotsylvania 1993).
A few other cases apply an arguably broader standard of "necessary to the plaintiff's claim" or "essential to the complaint." Hooper v. Union Bank & Trust, 100 Va. Cir. 130 (Chesapeake 2018); Johnson Senior Center v. Dolan, 97 Va. Cir. 76 (Amherst 2017); Fielder's Choice Enterprise v. Augusta County, 92 Va. Cir. 66 (Augusta 2015); Monger v. Herring, 79 Va. Cir. 470 (Rockingham 2009); Station #2 v. Lynch, 75 Va. Cir. 179 (Norfolk 2008); Bagwell v. City of Norfolk, 59 Va. Cir. 205 (Norfolk 2002). In some of the decisions two or all three of these standards are stated, so I may be drawing a distinction without a difference. Some of these decisions include "collateral documents."
The only other case of which I am aware that applied a more restrictive view of oyer is by Judge Horne. Lugo v. City Council of Alexandria, Case No. 18-3479 (Alexandria 2019), but he believes oyer ought to be avoided. Glass v. Trafalgar House Property, 58 Va. Cir. 437 (Loudon 2002).
Professor Bryson was correct when he wrote: "Formerly oyer of instruments not under seal was not allowed, but now the practice is otherwise." Virginia Civil Procedure, §6.03  (5th ed. 2017). Concluding Antigone is an outlier, however, does not mean the motion ought to be granted because an 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. I deny the motion craving oyer.
An order reflecting these rulings is attached.
Everett A. Martin, Jr.