Andrews v. Ring

PRESENT: All the Justices

RUTH S. ANDREWS
OPINION BY
v. Record No. 022434 JUSTICE DONALD W. LEMONS
September 12, 2003
WILLIAM DALE RING AND
JIMMY DON BOLT

WILLIAM COX

v. Record No. 022243

WILLIAM DALE RING AND
JIMMY DON BOLT

FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Barnard F. Jennings, Judge Designate

In this consolidated appeal involving two separate suits

alleging malicious prosecution and statutory conspiracy to cause

injury to “reputation, trade, business or profession” against

the Commonwealth’s Attorney of Grayson County and the Building

Inspector of Grayson County, we consider whether the trial court

erred by granting defendants’ motions for summary judgment.

Because the trial court granted summary judgment pursuant to

Rule 3:18, our review of the facts is limited to pleadings,

orders, and admissions of the parties.

I. Facts and Proceedings Below

During all times relevant to this case, Ruth S. Andrews

(“Andrews”) was the Chairperson of the Grayson County School

Board; William Cox (“Cox”) was the Director of School

Maintenance for Grayson County; Jimmy Don Bolt (“Bolt”) was the
Commonwealth’s Attorney of Grayson County; and William Dale Ring

(“Ring”) was the Building Inspector of Grayson County.

On August 1, 2000, upon direction of Cox and on behalf of

the Grayson County School Board, David G. Cornett, an employee

of the Grayson County School Maintenance Department, applied for

and received a building permit to install an above-ground

storage tank on the premises of Grayson County High School. On

August 7, 2000, employees in the Maintenance Department,

personally supervised and directed by Cox, poured a concrete pad

designed to support the proposed above-ground storage tank. At

Cox’s direction, the site upon which the concrete pad was poured

had been excavated July 31, 2000, the day prior to issuance of

the building permit. On August 28, 2000, Cox and Ring discussed

the project, and Ring informed Cox that his office needed a

letter from the project’s architect “stating that the concrete

pad was adequate to support the weight of the proposed storage

tank.” On September 6, 2000, Cox delivered a letter from

William W. Huber, the project architect, to Ring, which

“confirmed that a structural engineer evaluated the slab

thickness needed to support the . . . tank and determined that

the . . . pad was structurally adequate for supporting the

proposed tank.”

On September 8, 2000, at the direction of Bolt, Ring

appeared before a magistrate for Grayson County, and filed a

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criminal complaint against Andrews, Cox, and Dr. Alvin C.

Proffit 1 (“Dr. Proffit”), the Superintendent of Grayson County

Schools, alleging that they “[f]ailed to obtain a Building

Permit before beginning work on a 10,000 Gallon Storage tank[]”

and “[c]onceal[ed] work prior to the required inspection by

pouring concrete slab.” On September 11, 2000, Andrews, Cox,

and Dr. Proffit were served with warrants requiring them to

appear before the General District Court of Grayson County for

arraignment and trial. However, on the date set for trial,

October 3, 2000, Bolt moved the court to nolle prosequi the

charges against all three defendants. Bolt and Ring claim that

the decision to nolle prosequi the charges was the result of

settlement negotiations. Andrews and Cox deny that any

agreement to settle the criminal charges was reached.

On September 4, 2001, Andrews and Cox filed separate

motions for judgment in the Circuit Court of Grayson County

against Ring and Bolt alleging malicious prosecution and

conspiracy to injure reputation, trade, business, and profession

pursuant to Code §§ 18.2-499 and 18.2-500. Ring and Bolt filed

responsive pleadings which included several demurrers and

special pleas of immunity. On November 29, 2001, the parties

1
Dr. Profitt, now a resident of North Carolina, filed an
action similar to the present Virginia litigation against Ring
and Bolt in the United States District Court for the Western
District of Virginia, Abingdon Division.

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appeared before the trial court to present argument on the

demurrers and special pleas filed by Ring and Bolt. By order

dated January 11, 2002, the trial court overruled Ring’s and

Bolt’s special pleas of immunity without prejudice and overruled

each demurrer. The trial court ordered Ring and Bolt to file

grounds of defense.

On April 8, 2002, Ring and Bolt filed separate motions for

summary judgment. On April 30, 2002, the trial court heard

argument from the parties on the motions for summary judgment.

With regard to the malicious prosecution allegation, the trial

court held that there was sufficient probable cause justifying

the issuance of the warrants. Additionally, the trial court

held that Andrews and Cox could not recover damages for injury

to their personal reputations under Code §§ 18.2-499 and -500.

The trial court granted both motions for summary judgment. In

its final order in each case, the trial court stated that

“Defendants’ Motions for Summary Judgment are GRANTED for the

reasons and on the grounds stated on the record at the hearing

of Defendants’ motions and for the reasons and on the grounds

stated in the Defendants’ memoranda in support thereof.”

Andrews and Cox appeal the adverse judgments of the trial court.

II. Analysis

Summary judgment upon all or any part of a claim may be

granted to a party entitled to such judgment when no genuine

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issue of material fact remains in dispute, and the moving party

is entitled to judgment as a matter of law. Rule 3:18; Renner

v. Stafford, 245 Va. 351, 353, 429 S.E.2d 218, 220 (1993). A

grant of summary judgment must be based upon undisputed facts

established by pleadings, admissions in pleadings, and

admissions made in answers to requests for admissions. 2

Additionally, the trial court must consider inferences from the

facts in the light most favorable to the non-moving party,

unless the inferences are strained, forced or contrary to

reason. Carson v. LeBlanc, 245 Va. 135, 139-40, 427 S.E.2d 189,

192 (1993).

Andrews and Cox present identical assignments of error.

They assert that the trial court erred in granting summary

judgment to Bolt and Ring on the statutory conspiracy count and

on the malicious prosecution count of their respective motions

for judgment, and they further assert that summary judgment

should not have been granted before discovery was concluded.

A. Statutory Conspiracy under Code §§ 18.2-499 and –500

Andrews and Cox each allege that “Ring and Bolt acted in

concert to willfully and maliciously injure [them] in [their]

business, trade, and reputation” and seek damages from Bolt and

Ring under the statutory conspiracy provisions of Code §§ 18.2-

2
Of course, the trial court may consider the stipulations
of the parties, answers to interrogatories and deposition

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499 and –500. A violation of Code § 18.2-499 is punished as a

Class 1 misdemeanor. Additionally, Code § 18.2-500 provides a

civil remedy for a violation of Code § 18.2-499. Bolt and Ring

argue that the scope of the conspiracy statute is limited to

injury to business interests and does not extend to injury to

personal reputation even in the context of employment.

The conspiracy statute was once codified as part of the

antitrust laws of the Commonwealth. See Code § 59-21.1 (Cum.

Supp. 1962) (superseded). In 1964, the General Assembly removed

the conspiracy provisions from the antitrust statutes and placed

them in the criminal code with much greater sanctions. See Code

§ 18.1-74.1:1 (superseded) (Chapter 623, 1964 Acts of Assembly).

We conclude that the origin of Code §§ 18.2-499 and –500

establishes that they apply to business and property interests,

not to personal or employment interests.

Traditional statutory construction requires the same

conclusion. Code § 18.2-499 proscribes conspiracy to

“willfully, and maliciously injur[e] another in his reputation,

trade, business or profession.” The maxim of noscitur a sociis

provides that the meaning of doubtful words in a statute may be

determined by reference to their association with related words

and phrases. When general words and specific words are grouped

together, the general words are limited and qualified by the

testimony if the parties agree.

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specific words and will be construed to embrace only objects

similar in nature to those objects identified by the specific

words. Commonwealth v. United Airlines, Inc., 219 Va. 374, 389,

248 S.E.2d 124, 132-33 (1978). Here the word “reputation” is at

issue. Within the statute, its association with “trade,

business or profession” requires the exclusion of personal

reputation and interest in employment from the scope of the

statute’s coverage. We note that federal courts in Virginia

have reached similar holdings. See Buschi v. Kirven, 775 F.2d

1240, 1259 (4th Cir. 1985), Nationwide Mut. Fire Ins. Co. v.

Jones, 577 F.Supp. 968, 970 (W.D. Va. 1984).

The undisputed facts subject to proper consideration by the

trial court upon motions for summary judgment on this issue

clearly establish that Andrews and Cox seek damages for injury

to personal reputation and employment interests. As a matter of

law, an action under the Code §§ 18.2-499 and –500 may not

embrace such claims. With causes of action based upon statutory

conspiracy removed from consideration, we must now consider

claims of malicious prosecution.

B. Immunity of the Prosecutor

Bolt, the Commonwealth’s Attorney of Grayson County,

maintains that, upon the record of these cases, he is entitled

to absolute immunity from suit. The absolute immunity of

prosecutors from civil liability for acts within the scope of

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their duties and intimately associated with the judicial phase

of the criminal process is derivative of judicial immunity. As

we have previously held, “[i]t is clear that judges enjoy

absolute immunity from civil liability, even when they act

maliciously or corruptly or in excess of their jurisdiction.

Judges can be held liable only when they act in ‘clear absence

of all jurisdiction.’ ” Harlow v. Clatterbuck, 230 Va. 490,

493, 339 S.E.2d 181, 184 (1986) (quoting Johnston v. Moorman, 80

Va. 131, 142 (1885)). “The common-law immunity of a prosecutor

is based upon the same considerations that underlie the common-

law immunities of judges and grand jurors acting within the

scope of their duties.” Imbler v. Pachtman, 424 U.S. 409, 422-23

(1976).

In Imbler, the Supreme Court noted that the prosecutor’s

actions “were intimately associated with the judicial phase of

the criminal process, and thus were functions to which the

reasons for absolute immunity apply with full force.” Id. at

430. But the Court specifically reserved the question “whether

like or similar reasons require immunity for those aspects of

the prosecutor’s responsibility that cast him in the role of an

administrator or investigative officer rather than that of

advocate.” Id. at 430-431.

Later, in Burns v. Reed, 500 U.S. 478 (1991) the Court held

that absolute prosecutorial immunity from suit recognized in

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Imbler did not extend to giving advice to police officers. The

Court observed that: “Absolute immunity is designed to free the

judicial process from the harassment and intimidation associated

with litigation. . . . That concern therefore justifies

absolute prosecutorial immunity only for actions that are

connected with the prosecutor’s role in judicial proceedings,

not for every litigation-inducing conduct.” Burns at 494. In

the case before us, Andrews and Cox argue that Bolt gave

“advice” to Ring, and that pursuant to Burns, Bolt is not

entitled to absolute immunity. We disagree with Andrews and Cox

because this Court is not compelled to follow Burns.

The determination whether absolute prosecutorial immunity

is extended to the prosecutor in this case is a matter of state

common law not federal law. The principle is well-established

in the seminal case of Erie R.R. v. Tompkins, 304 U.S. 64, 78

(1938), where the Court stated:

Except in matters governed by the Federal
Constitution or by Acts of Congress, the law
to be applied in any case is the law of the
State. And whether the law of the State
shall be declared by its Legislature in a
statute or by its highest court in a
decision is not a matter of federal concern.
There is no federal general common law.
Congress has no power to declare substantive
rules of common law applicable in a State
whether they be local in their nature or
“general,” be they commercial law or a part
of the law of torts. And no clause in the
Constitution purports to confer such a power
upon the federal courts.

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 This fundamental principle of federalism was expressed by

the Supreme Court of North Carolina when it noted: “The views

of the Supreme Court of the United States . . . are not binding

upon this Court with regard to questions of North Carolina

common law – questions as to which this Court’s holding . . . is

the final and controlling authority.” Johnson v. Ruark

Obstetrics & Gynecology Assoc., P.A., 395 S.E.2d 85, 92 (N.C.

1990). See also, Harter v. Vernon, 101 F.3d 334, 342 (4th Cir.

1996)(“Our holdings on questions of state law do not bind state

courts, nor do state court determinations on questions of

federal law control us.”).

The process by which an accused may be charged with a

criminal offense in Virginia includes indictment, presentment,

information, arrest warrant, or summons. When a prosecutor is

involved in the initiation of the criminal process, it may take

the form of preparation of an indictment for consideration by a

Grand Jury, direction to a law enforcement officer to obtain a

warrant or summons, or advice to a law enforcement officer that

sufficient probable cause exists for the obtaining of a warrant

or a summons. For the purposes of determining a prosecutor’s

absolute immunity from suit, these are distinctions without a

material difference. In each case where a prosecutor is

involved in the charging process, under Virginia law, that

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action is intimately connected with the prosecutor’s role in

judicial proceedings and the prosecutor is entitled to absolute

immunity from suit for such actions. Consequently, Bolt is

entitled to absolute immunity from suit on the counts in each

motion for judgment alleging malicious prosecution. We do not

decide in this case whether actions of a prosecutor in the role

of investigator or administrator are entitled to absolute

immunity.

C. Malicious Prosecution Claims Against Ring

We have recently restated the following principles:

In an action for malicious prosecution,
the plaintiff has 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. . . .
In the context of a malicious
prosecution action, probable cause is
defined as knowledge of such facts and
circumstances to raise the belief in a
reasonable mind, acting on those facts and
circumstances, that the plaintiff is guilty
of the crime of which he is suspected. The
determination whether a defendant had
probable cause to believe that a crime was
committed is judged with reference to the
time the defendant took the action
initiating the criminal charges. When the
facts relating to the question of probable
cause are in dispute, the issue is one of
fact to be resolved by the trier of fact.

Stanley v. Webber, 260 Va. 90, 95-96, 531 S.E.2d 311, 314-15

(2000) (internal citations omitted). “[W]hat constitutes

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probable cause is a question for the court; but where there is

any conflict in the evidence it is for the jury to determine

whether in the particular case such probable cause existed.”

Brodie v. Huck, 187 Va. 485, 488, 47 S.E.2d 310, 312 (1948).

Additionally,

[w]hen a defendant, in initiating a
prosecution, acts in good faith upon the
advice of reputable counsel, after a full
disclosure of all material facts, he has
probable cause to support his action.
Probable cause serves as a complete defense
to an action for malicious prosecution, even
if the advice given by the attorney is
wrong. The defendant must prove that he
sought advice of counsel with an honest
purpose of being informed of the law, that
he made a full, correct and honest
disclosure of all material facts known to
him or which he should reasonably have
known, and that he acted in good faith
guided by the advice given by counsel. This
defense usually presents a jury question
unless reasonable minds cannot differ that
advice of counsel has been established.

Pallas v. Zaharopoulos, 219 Va. 751, 755, 250 S.E.2d 357, 359-60

(1979) (internal citations omitted).

1. Probable Cause

The issuance of a criminal warrant must be supported by

probable cause that a crime was committed and probable cause

that the person charged committed the crime. Code § 36-106

provides sanctions for violation of the Uniform Statewide

Building Code (“USBC”). Ring’s affidavits supporting the

issuance of criminal warrants against Andrews and Cox state:

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“Failed to obtain a Building Permit before beginning work on a

10,000 Gallon Storage tank. Concealing work prior to the

required inspection by pouring concrete slab.” USBC § 107.1

provides that:

[a]n application shall be submitted to the
code official for the following activities,
and these activities shall not commence
without a permit being issued in accordance
with Section 108.0[:]

1. Construct or alter a structure.
2. Construct an addition.
3. Demolish or move a structure.
4. Make a change of occupancy.
5. Install or alter any equipment which is
regulated by this code.
6. Move a lot line which affects an
existing structure.

USBC § 113.2 provides that:

[t]he permit holder shall assure that the
following inspections have been conducted
and approved by the code official . . . :
1. Inspection of footing excavations and
reinforcement material for concrete
footings prior to the placement of
concrete.
2. Inspection of foundation systems during
phases of construction necessary to
assure compliance with this code.
3. Inspection of preparatory work prior to
the placement of concrete.
4. Inspection of structural members and
fasteners prior to concealment.

Undisputed facts properly considered for resolution of a

motion for summary judgment establish that excavation of the

area for the tank occurred before the issuance of the building

permit and that a concrete pad was poured without inspection.

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Cox asserts that the building permit was issued to the School

Board and not to him; consequently, he could not be held

responsible for violations of the USBC. But the undisputed

facts establish that Cox was Director of School Maintenance, he

was supervising the construction for the tank, he directed a

construction company to excavate the site on the day before the

permit was issued, he directed an employee to obtain the permit,

and he and persons under his direction poured concrete before

obtaining an inspection. When a corporation or other entity

acts through individuals and such action “involves a violation

of the law, the correct rule is that all who participate in it

are liable.” Crall v. Commonwealth, 103 Va. 855, 859, 49 S.E.

638, 640 (1905).

Andrews and Cox maintain that there is a factual dispute

over whether a building permit was required for the excavation

and whether an inspection was required before pouring concrete.

The interpretation of the requirements of the USBC is a matter

of law, implicitly resolved against them by the trial court’s

ruling from the bench that “there was probable cause for the

issuance of [the warrants].”

The undisputed facts properly considered upon motion for

summary judgment establish that probable cause existed for the

issuance of the warrant against Cox. But this record does not

support a finding upon summary judgment that the warrant against

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Andrews was issued with probable cause that Andrews participated

in any acts in violation of the law. Andrews was the

Chairperson of the Grayson County School Board, an unlikely

person to be directing on-site construction and pouring

concrete. At this stage in the proceeding there is no evidence

of any act on her part that provided probable cause that she

committed the building code violation in question, and her

status as Chairperson of the School Board does not result in

vicarious liability for the acts in question.

2. Advice of Counsel Defense

Reliance upon advice of reputable counsel after full

disclosure of all material facts provides a complete defense to

an action for malicious prosecution, even if the attorney’s

advice is wrong. Justified reliance suffices to establish

probable cause to support the initial prosecution. Noell v.

Angle, 217 Va. 656, 660, 231 S.E.2d 330, 333 (1977). In this

case, it is unclear whether an accurate disclosure of all

material facts was made. Upon review of this record, we hold

that the evidence properly considered for summary judgment

purposes does not support a grant of summary judgment on this

question.

3. Voluntary Compromise of Criminal Complaints

A voluntary compromise ending a criminal prosecution

defeats a subsequent suit for malicious prosecution. Orndorff

15
v. Bond, 185 Va. 497, 502, 39 S.E.2d 352, 354 (1946). Ring

alleges that such a compromise was reached in the General

District Court of Grayson County when the nolle prosequi was

entered in the underlying criminal matters. Andrews and Cox say

that no agreement was reached. It is undisputed that a nolle

prosequi was entered. Why it was entered and whether it was the

result of a compromise cannot be determined by summary judgment

on this record.

4. Quasi-Judicial Immunity

Ring maintains that he is entitled to the absolute immunity

provided by quasi-judicial immunity because he characterizes his

actions as those of a prosecutor, involving functions intimately

related to the judicial process. As previously addressed, under

defined circumstances, a prosecutor may have absolute immunity,

in the nature of quasi-judicial immunity, from civil liability.

Burns, 500 U.S. at 492; Imbler, 424 U.S. at 430. We have

recognized that quasi-judicial immunity may extend to certain

non-judicial public officials acting within their jurisdiction,

in good faith, and while performing judicial functions. Harlow,

230 Va. at 493, 339 S.E.2d at 184. In conducting this analysis,

we apply “the ‘functional comparability’ test established by the

United States Supreme Court in Butz v. Economou, 438 U.S. 478

(1978).” Harlow, 230 Va. at 494, 339 S.E.2d at 184. We must

examine whether the act in question shares enough of the

16
characteristics of the judicial process to justify immunity. We

conclude that Ring’s duties as a building inspector are more

akin to those of a police officer in the enforcement of laws,

rules and regulations, than a prosecutor in the judicial

process. As a matter of law, Ring is not entitled to the

absolute immunity afforded by quasi-judicial immunity.

5. Qualified Immunity

In the alternative, Ring maintains that if he is not

entitled to quasi-judicial immunity, he is, nonetheless,

entitled to the same qualified immunity extended to police

officers for actions taken in good faith and with probable

cause. See Pierson v. Ray, 386 U.S. 547, 557 (1967). “A

defendant who asserts the qualified immunity defense, not the

plaintiff, must allege and prove the elements comprising this

defense.” Jordan v. Shands, 255 Va. 492, 499, 500 S.E.2d 215,

219 (1998). Ring argues that Andrews and Cox have “not

presented any facts that support a claim of actual malice.” On

this question the burden of proof is on Ring, not Andrews and

Cox. Upon review of this record, we hold that the evidence

properly considered for summary judgment purposes does not

support a grant of summary judgment on this question.

D. Grant of Summary Judgment
Before Conclusion of Discovery

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 The pre-trial scheduling order entered in early February,

2002, set the first day of trial in these cases for June 6,

2002. Andrews and Cox thereafter noticed depositions of an

employee of the Maintenance Department of the School Board and

the attorney for the School Board, for the afternoon of April

30, 2002, the same day as the motions for summary judgment were

to be heard before the trial court. Andrews and Cox assert that

the trial court erred in granting summary judgment from the

bench on April 30 (memorialized later in the final orders in

June and July, 2002), prior to the conclusion of discovery in

the case. This argument has no merit. Pursuant to the pre-

trial order the deadline for serving written discovery was mid-

April, 2002. No written discovery was pending response as of

the latter half of April, 2002. Without agreement of the

parties, only answers to requests for admissions could further

supplement the evidence properly considered by the trial court

for the motions for summary judgment. The noticed depositions

could not, absent stipulation of the litigants, have been used

as the basis for summary adjudication. Simply stated, Andrews

and Cox cannot show that the record upon which summary judgment

was granted would have been any different if the trial court had

delayed its ruling.

III. Conclusion

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 The trial court did not err in its grant of summary

judgment against Andrews and Cox upon their causes of action for

statutory conspiracy under Code §§ 18.2-499 and -500. On the

remaining causes of action for malicious prosecution, the trial

court did not err in its grant of summary judgment in favor of

Bolt. Because the undisputed facts properly considered upon

motion for summary judgment demonstrate that there was probable

cause for the issuance of the criminal warrant against Cox, the

trial court did not err in granting summary judgment for Ring on

Cox’s suit for malicious prosecution. However, the evidence

properly considered by the trial court upon summary judgment did

not support a finding of probable cause for the issuance of a

criminal warrant against Andrews. Furthermore, Ring’s various

remaining defenses either are not available to him as a matter

of law or they are insufficient on this record to support a

grant of summary judgment. Accordingly, the trial court erred

in granting summary judgment in favor of Ring and dismissing

Andrews’ cause of action for malicious prosecution. For the

reasons stated, the judgment of the trial court will be affirmed

in part, reversed in part and Andrews’ cause of action for

malicious prosecution against Ring will be remanded for further

proceedings.

Record No. 022434 – Reversed in part,
affirmed in part,
and remanded.

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Record No. 022243 - Affirmed.

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