Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,* S.J.
CHARLES F. BAKER
v. Record No. 051570 OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2006
JEFFREY ELMENDORF, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
In this appeal, we decide whether a criminal conviction
rendered in general district court but appealed pursuant to
Code § 16.1-132 is admissible in a subsequent civil action for
malicious prosecution.
I.
On May 10, 2004, Charles F. Baker filed this malicious
prosecution action against Jeffrey and Dorothy Elmendorf.
Baker claimed that the Elmendorfs initiated a false
prosecution of Baker for stalking in violation of Code § 18.2-
60.3. Baker was convicted of the charge in general district
court but the conviction was reversed on appeal in the circuit
court. Baker sought damages of $33,000, the amount he
allegedly spent to defend himself in these proceedings.
Prior to trial, Baker submitted a motion in limine
requesting that the trial court exclude all references to the
general district court conviction because an appeal "annuls
*
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
the judgment of the inferior tribunal as completely as if
there had been no previous trial." Gaskill v. Commonwealth,
206 Va. 486, 490, 144 S.E.2d 293, 296 (1965). Based on this
Court's holding in Ricketts v. J.G. McCrory Co. 138 Va. 548,
554, 121 S.E. 916, 918 (1924), that a "conviction by a trial
justice, though reversed on appeal, is conclusive evidence of
probable cause" in an action for malicious prosecution, the
trial court overruled the motion in limine and allowed the
Elmendorfs to introduce into evidence the general district
court conviction. The jury returned a verdict in favor of the
Elmendorfs, and the trial court entered an order dismissing
the case with prejudice. Baker timely appealed to this Court
assigning error to the trial court’s admission of the
conviction into evidence.
II.
To prevail in an action for malicious prosecution a
litigant must prove 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." Andrews v. Ring, 266 Va. 311, 322, 585 S.E.2d
780, 786 (2003) (quoting Stanley v. Webber, 260 Va. 90, 95-96,
531 S.E.2d 311, 314-15 (2000)); accord Commissary Concepts
Mgmt. v. Mziguir, 267 Va. 586, 589, 594 S.E.2d 915, 917
2
(2004). The issue in this appeal involves the admissibility
of evidence offered to establish the third element of the
cause of action.
In Ricketts, we held that evidence of a defendant's
conviction in a court not of record** for petit larceny was
admissible in a subsequent malicious prosecution suit against
the instigator of the petit larceny charges because: "It is
settled law in this State that conviction by a trial justice,
though reversed on appeal, is conclusive evidence of probable
cause, unless such conviction was procured by the defendant
through fraud or by means of evidence which he knew to be
false." Id. at 554, 121 S.E. at 918. In making this
statement we cited Saunders v. Baldwin, 112 Va. 431, 71 S.E.
**
In 1973, the General Assembly enacted legislation
dividing the Commonwealth into districts, consolidating
the courts not of record, and renaming such courts
"general district courts," with the exception of
"juvenile and domestic relations courts." See 1973 Acts
ch. 546 (amending Code §§ 16.1-69.6, 16.1-69.5(d)).
Prior to this time, courts not of record included "trial
justices," "police justices," and "justices of the
peace," while courts of record included "corporation
courts," "county courts," and "hustings courts." See
former Code §§ 16-41 through 16-8 (1950)(trial justices);
former Code §§ 16-124 through 16-128 (1950)(police
justices); former Code §§ 39-1 through 39-6 (1950)
(justices of the peace); former Code §§ 17-135 through
17-144 (1950) (corporation courts, also known as hustings
courts); and former Code §§ 16.1-36 through 16.1-51
(1960) (county courts).
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620 (1911), a case in which we explained that the policy
behind this rule is based upon
the principle that when the prosecuting witness
or the person who has started the prosecution
acts upon facts which are of such a character
as that when they are stated to a calm and
dispassionate person capable of judging, they
lead him to believe that the person charged is
guilty, they are such as make out a case of
probable cause upon which the prosecuting
witness or prosecutor has the right to act. It
is upon this principle that the doctrine
recognized in most jurisdictions and in this
State, that the advice of a reputable attorney
at law, properly sought and acted on in good
faith, constitutes probable cause as a matter
of law, and furnishes a complete defense to an
action of malicious prosecution.
Id. at 437-38, 71 S.E. at 622.
Baker argues that despite the policy stated in Saunders
and Ricketts, ensuing statutory amendments and other decisions
of this Court, specifically Santen v. Tuthill, 265 Va. 492,
578 S.E.2d 788 (2003), have rendered the prior cases no longer
binding precedent. In contrast, the Elmendorfs argue that
Ricketts is still controlling law, Santen is distinguishable,
and the probable cause element of the tort requires the
admission of the judicial history of the criminal charge.
At this point, a review of the statutes and case law
regarding appeals from courts not of record and the
admissibility of judgments rendered in such courts is in
order. In 1924, when Ricketts was decided, a criminal
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defendant convicted of a non-felonious offense in a court not
of record was entitled to an appeal of right to a court of
record and a "trial by jury in the same manner as if he had
been indicted for the offense in said court," Code §§ 4989,
4990 (1919). Neither the statutory language nor our
decisions, however, established the manner in which that
appeal was to be heard; in other words, whether it was to be
heard de novo.
In 1926, in Cooper v. Town of Appalachia, 145 Va. 861,
864, 134 S.E. 591, 592 (1926), this Court appeared to answer
that question in the negative, holding that by entering a
guilty plea in a court not of record, a defendant waived his
right to an appeal. However, we reconsidered and overruled
our decision in Cooper in 1934 when we decided Dickerson v.
Commonwealth, 162 Va. 787, 173 S.E. 543 (1934). Though the
language of the statutes governing appeals from courts not of
record had not changed significantly at that point, we held:
Under these statutory provisions upon an appeal
from the judgment of a justice or trial justice
the case is to be tried de novo as if it were
being tried upon an information or indictment
brought before the circuit court in the first
instance; that is, the appeal is in effect a
statutory grant of a new trial to the accused
to be had before the circuit court. . . .
[U]nder statutes such as the Virginia statutes
a plea of guilty entered before a justice of
the peace does not operate to waive or bar the
right of the accused to an appeal.
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Id. at 793-94, 173 S.E. at 546. Four years later, in 1938,
the General Assembly amended Code § 4989 specifically to
provide for an appeal "de novo" from courts not of record.
See 1938 Acts ch. 53. It then added to former Section 4989 in
the 1950 recodification the principle that a guilty plea in a
court not of record did not waive the right to a de novo
appeal. See Former Code § 16-6 (1950) (granting right to
appeal irrespective of guilty plea); former Code § 16-10
(1950) (prescribing trial de novo on appeal).
Since the 1950 recodification, the language of the Code
provisions has remained virtually the same, see Code §§ 16.1-
132, -136 (2003), but as we have been presented with new
circumstances involving appeals from courts not of record to
circuit courts, we have continued to develop the implications
of a de novo appeal, specifically that an appeal of a general
district court decision negates any judgment entered in that
prior proceeding.
For example, Gaskill involved the nature of a conviction
that had been appealed de novo to a court of record. 206 Va.
at 487, 144 S.E.2d at 294. The defendant sought to overturn
her criminal jury conviction in a court of record on the
grounds that her conviction by the judge in the court not of
record was unconstitutional because she had a right to trial
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by jury for the offense charged. Id. We rejected this
argument, explaining that an appeal from the court not of
record to the court of record "annuls the judgment of the
inferior tribunal as completely as if there had been no
previous trial [and] it is reversible error to permit such
judgment to be introduced in evidence before the jury on a
trial of the case on appeal." Id. at 490, 144 S.E.2d at 296.
Therefore, the defendant was not denied a right to a jury
trial.
The principle that the appeal de novo negates the prior
proceeding has not been limited to circumstances involving the
appeal of a criminal conviction. In Santen, we considered
whether a guilty plea in the general district court that was
appealed and reversed on appeal was properly excluded from
evidence in a subsequent civil action. 265 Va. at 496, 578
S.E.2d at 790. We concluded that under these circumstances
the guilty plea was not admissible "[s]ince an appeal under
Code § 16.1-132 'annuls or wipes out' a guilty plea entered in
district court, [thus] there no longer exists a guilty plea
that, otherwise, would be admissible in a subsequent civil
proceeding under the provisions of Code § 8.01-418." Id. at
497, 578 S.E.2d at 791. For the same reason, the guilty plea
was also inadmissible as a party admission or prior
inconsistent statement, although testimony in the general
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district court was not "wiped out" and would be admissible in
the civil case. Id.
From the foregoing discussion, it is clear that since
Ricketts, the General Assembly has amended the Code of
Virginia and we have issued opinions examining the nature of
the de novo appeal and more clearly defining its scope. The
General Assembly's codification of trials "de novo" in 1938
and its inclusion of guilty pleas as appealable judgments in
1950, and our explanation that de novo appeals "annul[] the
judgment of the inferior tribunal as completely as if there
had been no previous trial," Gaskill, 206 Va. at 490, 144
S.E.2d at 296, and "wipe[] out" guilty pleas, Santen, 265 Va.
at 497, 578 S.E.2d at 791, compel us to conclude that Baker's
conviction in the general district court which was appealed
and reversed on appeal should not have been admitted in
evidence.
Finally we reject the Elmendorfs' remaining argument
that, regardless of these cases and statutory changes,
Ricketts should still control this case because an action for
malicious prosecution requires an examination of the judicial
history of the criminal charge. The case law and statutes
establishing the principles of de novo review do not
distinguish among the bases for the judgment in general
district court from which the appeal is taken, for example,
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whether the defendant entered a guilty plea or was convicted;
nor do they consider the nature of the subsequent proceeding,
for example whether the case involved the de novo appeal of
the criminal case or a subsequent civil case. Whenever a
defendant exercises his rights under Code § 16.1-132 and a
conviction in general district court is appealed, the fact of
that conviction is not admissible in the appeal or in a
subsequent civil proceeding.
For these reasons, we will reverse the judgment of the
trial court and remand the case for further proceedings
consistent with this opinion.
Reversed and remanded.
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