Lewis v. Kei

Present: Kinser, C.J., Lemons, Goodwyn, Millette and Mims,
JJ., and Russell and Koontz, S.JJ.

MICHAEL A. LEWIS, JR.
OPINION BY
v. Record No. 100338 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
April 21, 2011
BRIAN A. KEI, ET AL.

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
James F. D'Alton, Jr., Judge

In this appeal, we consider whether the circuit court

erred when it sustained a demurrer to an amended complaint

alleging malicious prosecution, false imprisonment, and

defamation against the law enforcement officer who obtained a

warrant for the arrest of the plaintiff based upon a citizen’s

complaint that ultimately proved to be unfounded.

BACKGROUND

Our consideration of the issues presented is guided by the

well-established principle of appellate review that “[a]
demurrer tests the legal sufficiency of facts alleged in

pleadings, not the strength of proof. We accept as true all
facts properly pleaded in the . . . complaint and all

reasonable and fair inferences that may be drawn from those

facts.” Glazebrook v. Board of Supervisors of Spotsylvania

County, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).

Additionally, when, as here, a circuit court sustains a

demurrer to an amended complaint that does not incorporate or

refer to any of the allegations that were set forth in a prior

complaint, “we will consider only the allegations contained in

the amended pleading to which the demurrer was sustained.”
Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 102, 540

S.E.2d 134, 136 (2001).

In an amended complaint filed September 14, 2009 in the

Circuit Court of Prince George County, Michael A. Lewis, Jr., a

general contractor, alleged that on August 1, 2008 he was

working on a project in a residential neighborhood in Prince

George County. While Lewis was sitting in the driver’s seat of

his parked truck talking with a customer on his cellular phone,

T.H., a ten-year old child, approached Lewis and asked if Lewis

could give him a ride home because he lived a good distance

away and it was a hot day. Although Lewis did not know T.H.,

he agreed to give him a ride home. T.H. got into the cab of

the truck while Lewis was still talking on his phone.

Just as T.H. got into the truck, Cedrick Williams, who did

not know either Lewis or T.H., came out of his home and

approached Lewis’ truck. Despite not having overheard the

conversation between Lewis and T.H., Williams yelled at the

child to get out of the truck and told Lewis that he was

calling 911. Once T.H. got out of the truck, Lewis explained

the circumstances to Williams and then drove away. Thereafter,

Williams called 911 and spoke with emergency dispatch personnel

regarding the incident, reporting that he had witnessed an

attempt by Lewis to abduct T.H.

At 11:00 p.m. on August 1, 2008, a local television

station reported that the Prince George County Police

Department was “on the hunt” for a suspect “who tried to kidnap

a 10-year-old, had it not been for a neighbor who intervened.”

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Lewis alleged that the television station obtained this

information from either Williams or Lieutenant Brian A. Kei of

the Prince George County Police Department.

On August 7, 2008, Kei obtained an arrest warrant for

Lewis on a charge of abduction of T.H. in violation of Code

§ 18.2-47. Despite the fact that six days had passed and Kei

had T.H.’s name and address, Kei had not interviewed the child,

his guardians, Lewis, or Williams. Rather, he relied solely on

Williams’ statement to the 911 dispatcher in obtaining the

arrest warrant. Subsequently, Lewis was arrested on the

warrant.

Lewis alleged that on August 8, 2008, Kei published a

notice on the County’s website which was titled “Arrest made in

Prince George Abduction Case.” The notice identified Lewis by

name, contained a photograph of Lewis, and represented that

Lewis had been “arrested in connection with the abduction of a

10 year old Prince George child that occurred last Friday.”

The notice remained on the website for several months after the

charge against Lewis had been expunged.

A local television station re-published the story and

photograph of Lewis from the County’s website. On August 8,

2008, the Richmond Times-Dispatch published a story entitled,

“Crewe man charged in abduction attempt,” recounting the facts

of the case as reported on the County’s website. On August 9,

the Petersburg Progress-Index published an article about Lewis’

arrest, which stated that the County police arrested “a man

they say tried to take a 10-year-old boy.” The article quoted

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Kei as saying, “I think it’s a good day since we got this guy

in custody and hopefully everyone can rest a little bit

easier.” The article also quoted Kei as stating, “The more the

juvenile declined, the suspect [Lewis] became more angry and

began yelling at the juvenile.”

Lewis was held for forty-one days in the Riverside

Regional Jail. Twice, Lewis was denied bail. Eventually,

Lewis’ attorney met with the Assistant Commonwealth’s Attorney

assigned to the case and requested that she speak with T.H.

regarding the incident. After the Assistant Commonwealth’s

Attorney spoke with T.H. and verified Lewis’ version of the

incident, the charges against Lewis were dismissed by nolle

prosequi. Upon Lewis’ petition, the Prince George Circuit

Court expunged the record of the arrest on October 29, 2008.

In the amended complaint, Lewis sought damages from

Williams and Kei for malicious prosecution, false imprisonment,

and defamation. Kei, by counsel, filed a demurrer to the
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amended complaint on September 21, 2009. Kei’s principal

contention in support of his demurrer was that neither the

malicious prosecution nor the false imprisonment claims could

be sustained because the allegations of the amended complaint

showed that Lewis’ arrest was founded upon adequate probable

cause. Kei contended that there was no express allegation that

1
Kei also filed an answer and asserted affirmative
defenses to the complaint, including a plea of sovereign
immunity. Because the circuit court sustained the demurrer
and dismissed the complaint as to Kei with prejudice, it did
not address the issue of sovereign immunity. Accordingly, we
express no opinion on that issue.

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he had any actual malice toward Lewis in pursuing his arrest.

Kei further contended that the claim for defamation could not

be sustained because the statements attributed to Kei either

were not verbatim quotes attributable to Kei, or if they were,

they either were objectively true or statements of opinion.

Kei also maintained that any statements made to the magistrate

or in the course of the criminal proceedings against Lewis were

subject to an absolute privilege afforded to statements made as

part of a judicial proceeding. On September 23, 2009,

Williams, pro se, filed a pleading adopting the argument of

Kei’s demurrer by reference.

The circuit court received oral argument from counsel for

Lewis and Kei in a hearing held on November 20, 2009. Williams

was also present and, as in his pleading, effectively asked the

court to adopt any argument on behalf of Kei as also applicable

to Williams’ demurrer. At the conclusion of the hearing,

counsel for Kei provided the court with a draft order

sustaining Kei’s demurrer as to all three claims, with a blank

area for the court to enter its ruling on Williams’ demurrer.

The court entered this order, sustaining the demurrer as to all

claims against Kei and, in a holographic amendment in the blank

space, indicated that it was also sustaining Williams’ demurrer

only as to the claims of false imprisonment and defamation.
2
This appeal followed.

2
In his notice of appeal, Lewis stated that he was
appealing “the final Order entered . . . November 20, 2009
sustaining the demurrer filed by defendant, Brian A. Kei,” and
it is this aspect of the circuit court’s judgment that is

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 DISCUSSION

Lewis contends that the circuit court erred because the

amended complaint adequately stated all three causes of action.

We will address the adequacy of the amended complaint’s

allegations to support claims for malicious prosecution, false

imprisonment, and defamation against Kei in turn.

A. Malicious Prosecution

In an action for malicious prosecution, the plaintiff must

prove four elements: 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. O’Connor v. Tice, 281 Va. 1, 7,
704 S.E.2d 572, 575 (2011); Baker v. Elmendorf, 271 Va. 474,

476, 628 S.E.2d 358, 359 (2006). The second and fourth of

these elements are not at issue in this appeal. Actions for

malicious prosecution arising from criminal

proceedings are not favored in Virginia and the requirements

for maintaining such actions are more stringent that those

applied to other tort cases to ensure that criminal

prosecutions are brought in appropriate cases without fear of

addressed in Lewis’ first assignment of error. However, Lewis’
petition for appeal included a second assignment of error
addressing the circuit court’s sustaining, in part, Williams’
demurrer as well. During oral argument of this appeal, Lewis’
counsel stated that the claim for malicious prosecution against
Williams, which remained active following the November 20, 2009
hearing, had been nonsuited and a new action had been filed
against Williams limited to that claim. Moreover, counsel
stated that this appeal was limited to “everything as it
pertains to Officer Kei.” Accordingly, we hold that Lewis has
waived his appeal as to the sustaining of Williams’ demurrer to

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reprisal by civil actions. O’Connor, 281 Va. at 7, 704 S.E.2d

at 575; Ayyildiz v. Kidd, 220 Va. 1080, 1082-83, 266 S.E.2d

108, 110-11 (1980).

In his amended complaint, Lewis asserts that Kei’s arrest

constitutes malicious prosecution because it was instituted

without probable cause, despite the fact that a magistrate

issued an arrest warrant. Lewis asserts that Kei could not

have had a good faith basis to believe that Lewis was guilty of

abduction because he relied solely on Williams’ complaint, as

relayed to Kei by the 911 dispatcher, and he did not conduct

any investigation prior to seeking the warrant for Lewis’

arrest. Because Kei did not make a full, accurate, and honest

disclosure to the magistrate of these facts when obtaining an

arrest warrant, Lewis contends that Kei acted maliciously

because malice may be inferred from the lack of probable cause.

Reilly v. Shepherd, 273 Va. 728, 733, 643 S.E.2d 216, 219
(2007).

The amended complaint contains the express statement that

“[t]he prosecution of Lewis was malicious. It was instituted

by the defendants without probable cause.” However, Lewis’

assertion that Kei lacked probable cause to seek a warrant for

his arrest is a legal conclusion, not a statement of fact, and

“ ‘a demurrer does not admit the correctness of the pleader’s

conclusions of law.’ ” Dodge v. Randolph-Macon Woman's

the false imprisonment and defamation claims, and we need not
address that issue further.

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College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (quoting Fox

v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).

We have defined probable cause as “knowledge of such a

state of facts and circumstances as excite the belief in a

reasonable mind, acting on such facts and circumstances, that

the plaintiff is guilty of the crime of which he is suspected.”

Commissary Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586, 589-

90, 594 S.E.2d 915, 917 (2004) (internal quotation marks

omitted); see also O’Connor, 281 Va. at 9, 704 S.E.2d at

576. Whether probable cause existed is determined as of the

time when the action complained of was taken. Commissary

Concepts Mgmt. Corp., 267 Va. at 590, 594 S.E.2d at 917; see

also O’Connor, 281 Va. at 9, 704 S.E.2d at 576.

Viewing the allegations of the amended complaint as a

whole, we do not find that Lewis alleged facts sufficient to

support the legal conclusion that Kei did not have probable

case to seek the arrest warrant or that Kei, rather than

Williams, was motivated by any personal or generalized animus
toward Lewis. The amended complaint clearly states that Kei

relied on the statement by Williams, who claimed to be an

eyewitness to incident, when obtaining an arrest warrant for

Lewis.

Police may rely on the statement of a reported eyewitness

as establishing probable cause to seek an arrest. See Reilly
273 Va. at 732-34, 643 S.E.2d at 218-19 (finding that probable

cause existed when the arresting officer obtained a warrant

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based on a positive identification of a suspect by an

eyewitness); see also Brice v. Nkaru, 220 F.3d 233, 238-39 (4th

Cir. 2000) (citing Gramenos v. Jewel Cos., 797 F.2d 432, 434

(7th Cir. 1986) (“Police often arrest suspects on the basis of

oral reports from witnesses.”)). In this case, Kei relied on

the report of a 911 dispatcher who stated that Williams

witnessed Lewis attempting to kidnap a ten-year old child. Kei

had no reason to believe that the 911 report was false. While

Kei did not perform any further investigation prior to seeking

the arrest warrant from the magistrate, this fact alone does

not establish that Kei acted in bad faith or with malice toward

Lewis. Accordingly, we hold that the circumstances known to

Kei as alleged in the amended complaint were sufficient to

“excite the belief in a reasonable mind” that there was

probable cause to believe that Lewis had committed the offense

of abduction, and, thus, the circuit court did not err in

sustaining Kei’s demurrer to the claim against him for

malicious prosecution.

B. False Imprisonment

False imprisonment is the restraint of one’s liberty

without any sufficient legal excuse. Montgomery Ward & Co. v.
Wickline, 188 Va. 485, 489, 50 S.E.2d 387, 388 (1948). If the

plaintiff’s arrest was lawful, the plaintiff cannot prevail on

a claim of false imprisonment. DeChene v. Smallwood, 226 Va.

475, 481, 311 S.E.2d 749, 752 (1984). In Sands & Co. v.
Norvell, 126 Va. 384, 399-400, 101 S.E. 569, 574 (1919), we

held that if a warrant is “regular and valid,” then “no action

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for false imprisonment could have been maintained if the

prisoner had been taken in due course to the magistrate and

there admitted to bail or imprisoned regularly upon due order

of commitment from him.”

In his complaint, Lewis states that “Kei . . . knew, or

with minimal diligence, could have easily discovered that Lewis

did not commit any crime on August 1, 2008.” However, this

allegation is not sufficient to establish a prima facie case of

false imprisonment. As we have already indicated, Kei had

sufficient, if minimal, probable cause to obtain the warrant,

properly issued by the magistrate, under which Lewis was

arrested. Thus, we hold that Kei did not falsely imprison

Lewis, and the circuit court did not err in sustaining Kei’s

demurrer with respect to the claim for false imprisonment.

C. Defamation

In order to assert a claim of defamation, the plaintiff

must first show that a defendant has published a false factual

statement that concerns and harms the plaintiff or the

plaintiff’s reputation. Hyland v. Raytheon Tech. Servs. Co.,
277 Va. 40, 46, 670 S.E.2d 746, 750 (2009). The plaintiff also

must show that the defendant knew that the statement was false,

or, believing that the statement was true, lacked a reasonable

basis for such belief, or acted negligently in failing to

determine the facts on which the publication was based. Id.

When a plaintiff asserts that the defendant acted negligently,

the plaintiff must further prove that the defamatory statement

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made apparent a substantial danger to the plaintiff’s

reputation. Id.

“Expressions of opinion, however, are constitutionally

protected and are not actionable as defamation.” Id. at 47,

670 S.E.2d at 750. Therefore, in evaluating a demurrer to a

claim of defamation, a trial court “must determine as a matter

of law whether the allegedly defamatory statements contain

provably false factual statements or are merely statements of

opinion.” Id. “When a statement is relative in nature and

depends largely on a speaker’s viewpoint, that statement is an

expression of opinion. Factual statements made in support of

an opinion, however, can form the basis for a defamation

action.” Id. at 47, 670 S.E.2d at 751 (internal citations

omitted).

“In determining whether a statement is one of fact or

opinion, a court may not isolate one portion of the statement

at issue from another portion of the statement. Rather, a

court must consider the statement as a whole.” Id. (internal

citations omitted). In other words, in considering whether a

plaintiff has adequately pled a cause of action for

defamation, the court must evaluate all of the statements

attributed to the defendant and determine whether, taken as a

whole, a jury could find that defendant knew or should have

known that the factual elements of the statements were false

and defamatory.

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 In his amended complaint, Lewis alleged that Kei made

several false factual statements. Specifically, Lewis

attributes to Kei the statements from the County’s website that

the child was “approached” by Lewis and that Lewis “ordered the

victim into the van;” that a “neighbor” “foiled” Lewis’ attempt

to “escape with the child;” and that Lewis had been “arrested

in connection with the abduction of a 10 year old Prince George

child that occurred last Friday.” The amended complaint

further alleges that on August 9, 2008, Kei told the Progress-

Index “I think it’s a good day since we got this guy in custody

and hopefully everyone can rest a little bit easier.” Kei

further stated, “The more the juvenile declined, the suspect

[Lewis] became more angry and began yelling at the juvenile.”

The amended complaint also alleges that Kei knew that the

statements he made were false, that he acted recklessly in

making the statements, that he lacked any good faith basis for

the statements, and that Kei knew the statements made on the

County website would be re-published by the news organizations.

When considered individually, many of the statements

attributed to Kei cannot sustain a claim of defamation because

they are objectively true when considered in the light of other

allegations within the amended complaint. For example, it was

objectively true, at least at the time Kei was alleged to have

made the statements, that Lewis had been arrested in connection

with an alleged abduction. 3 However, other statements

3
Lewis does not expressly assert that Kei had a duty to
see that these statements were removed from the County’s

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attributed to Kei, such as the assertion that Lewis

“approached” T.H., are subject to being proven false, and a

jury could find that Kei was negligent in making these

statements based solely upon Williams’ 911 report without

conducting any follow-up investigation.

Likewise, we cannot say that the statements attributed to

Kei by the Progress-Index are objectively true or matters

purely of opinion when considered under the standard applicable

to the sustaining or overruling of a demurrer to a claim for

defamation. The complaint specifically alleges that Kei had no

basis for asserting that Lewis was “angry” or “yelling” at T.H.

Likewise, the statement “it’s a good day since we got this guy

in custody and hopefully everyone can rest a little bit

easier,” while arguably a statement of opinion, could, in light

of the other statements attributed to Kei, be considered an

implicit assertion of Lewis’ guilt of, or a least a propensity

to commit, serious offenses against children.

In addition to proving that Kei knew or should have known

that these statements concerning Lewis were false, to be

defamatory they also must “concern[] and harm[] [Lewis] or

[his] reputation.” Hyland, 277 Va. at 46, 670 S.E.2d at 750.

The false accusation of the commission of a criminal act

generally is sufficient to establish an injury to the

plaintiff’s reputation. See, e.g., WJLA-TV v. Levin, 264 Va.

website after the charges against Lewis were dismissed and the
record expunged. Accordingly, we will not express any opinion

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140, 153, 564 S.E.2d 383, 390-91 (2002). Indeed, an action

for defamation based upon an accusation of criminal conduct

may be maintained even when the plaintiff actually has been

charged with the offense, entered a plea of no contest, and is

convicted and sentenced for the crime. Parson v. Carroll, 272

Va. 560, 566, 636 S.E.2d 452, 455 (2006). Whether, and if so

to what extent, a false accusation has injured the plaintiff

or his reputation generally is a matter for the jury. We hold

that the allegations of the amended complaint adequately

allege an injury to Lewis’ reputation arising from Kei’s

statements.

Given the posture of this appeal, the issue is not whether
Lewis will be able to establish to the satisfaction of a jury

that these statements defamed him, but whether the circuit

court should have afforded him the opportunity to do so.

Because the amended complaint was adequate to state a basis

upon which, if proven to the satisfaction of the jury, Lewis

could assert a claim for defamation against Kei, we hold that

the circuit erred in sustaining Kei’s demurrer as to that

claim.

CONCLUSION

For these reasons stated, we will affirm the circuit

court’s judgment sustaining Kei’s demurrer to the malicious

prosecution and false imprisonment claims. We will reverse the

on that question.

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circuit court’s judgment sustaining the demurrer to the

defamation claim, and remand the case for further proceedings

consistent with the views expressed in this opinion.

Affirmed in part,
reversed in part,
and remanded.

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