Stanley v. Webber

Present: All the Justices

REBECCA A. STANLEY, ET AL.

v. Record No. 991958 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 2000
DONALD WAYNE WEBBER, ET AL.

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge

In this appeal of a judgment entered in favor of the

plaintiffs in a malicious prosecution action, we consider

whether the evidence was sufficient to support the jury verdict.

Donald Wayne Webber and his son, Todd Anthony Webber

(collectively, the Webbers), each filed a motion for judgment

against S & A Restaurant Corporation, doing business as Steak &

Ale (Steak & Ale), and Rebecca Ann Stanley, the manager of a

Steak & Ale restaurant located in Roanoke (the restaurant). The

Webbers alleged that Stanley, acting on behalf of Steak & Ale,

maliciously and falsely procured felony warrants against them,

charging them with grand larceny of a commercial oven owned by

the restaurant.

We will state the evidence presented at trial in the light

most favorable to the Webbers, the parties who prevailed in the

trial court. Hudson v. Lanier, 255 Va. 330, 331, 497 S.E.2d

471, 472 (1998); Horton v. Horton, 254 Va. 111, 115, 487 S.E.2d

200, 203 (1997). The Webbers operate a business in Roanoke
known as Security Food Equipment Services (Security Equipment),

which repairs commercial food service equipment for restaurants

and institutions. Security Equipment had repaired food service

equipment at the restaurant on numerous occasions over a period

of between 10 and 15 years.

In June 1995, Stanley, acting on behalf of Steak & Ale,

placed a telephone call to Security Equipment's office and

reported that one of the restaurant's convection ovens was not

working. Todd Webber went to the restaurant and, after

examining the oven, estimated that the parts required to repair

the oven would cost about $350. Stanley told him that the Steak

& Ale "home office" did not want to pay that much to repair the

oven because it was to be replaced soon. Todd Webber offered to

pay for the parts and repair the oven without charge if Steak &

Ale would agree to give the oven to the Webbers in "30 days or

so, whatever" when the restaurant received the new oven.

Stanley accepted Todd Webber's offer, and the Webbers repaired

the oven the next day.

During the remaining months of 1995, the Webbers contacted

Stanley "four to five" times and requested delivery of the oven

they had repaired. Stanley repeatedly told them that the new

oven was still "on order." In January 1996, when the Webbers

confronted Stanley at the restaurant and requested either

payment for the repair work or delivery of the oven, Stanley

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again told them that the new oven had not yet arrived. During

an ensuing argument, both Stanley and Donald Webber summoned the

police.

Officer Michael W. Dull of the Roanoke Police Department

went to the restaurant and told the Webbers that the dispute was

a "civil matter." Dull suggested that the Webbers write a

letter to Steak & Ale's corporate office or file a civil court

action.

Todd Webber sent a letter to Steak and Ale's corporate

headquarters, explaining his agreement with Stanley and

requesting that it be honored. Both Donald and Todd Webber

testified that they did not receive a response to this letter.

Frederick R. Green, a regional supervisor for Steak & Ale,

testified that he received Todd Webber's letter in late February

1996, and that he ordered the new oven for the restaurant only

after he received the letter.

On the morning of March 11, 1996, the Webbers appeared at

the restaurant, again requesting either payment for the repair

work or delivery of the oven. Stanley tried unsuccessfully to

reach Green by telephone. When Stanley warned the Webbers not

to remove the oven, they replied that they had waited long

enough to receive it. The Webbers removed the oven, loaded it

onto a trailer, and took the oven to Todd Webber's garage.

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 Stanley telephoned Officer Dull and told him that the

Webbers had taken the oven. Dull informed Stanley that she

could institute a civil action against the Webbers, or that she

could bring criminal charges against them. Stanley told Dull

that she wanted to pursue criminal charges and she prepared a

written statement in which she stated that the oven had a value

of $1,500.

Officer Dull interviewed Todd Webber the same morning,

retrieved the oven from him, and returned it to the restaurant.

Based on Stanley's written complaint, Dull obtained arrest

warrants for the Webbers on charges of grand larceny. When Dull

contacted the Webbers, they agreed to meet him in front of the

magistrate's office at the jail, where he served the warrants on

them. The Webbers were taken into the jail, and their

fingerprints and photographs were taken. After about 1½ hours,

the Webbers were released from custody on personal recognizance

bonds.

Later that day, Stanley telephoned the Security Equipment

office and informed Donald Webber's wife that the restaurant had

received its new oven and that the Webbers could take the old

oven from the loading dock behind the restaurant. When the

Webbers arrived to take possession of the oven, Stanley signed a

receipt presented to her by Todd Webber. The receipt stated:

"Received oven as payment in full on Invoice Number 27 date 6-

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25-1995. That was to be paid in full by or around August, 1995.

Seven months later transaction was completed."

About two months later, when the Webbers had retained an

attorney and appeared in court for a preliminary hearing, they

were told that the prosecutor intended to seek dismissal of the

charges against them. Stanley testified that she and Green

decided not to pursue the charges because they "wanted all of

this to end." The prosecutions were terminated prior to the

scheduled preliminary hearing.

At the end of the Webbers' evidence in the malicious

prosecution actions, and again at the close of all the evidence,

Steak & Ale and Stanley (collectively, the defendants) moved to

strike the Webbers' evidence. The trial court denied both

motions to strike and submitted the actions to the jury, which

returned a verdict in favor of the Webbers, awarding damages to

each for malicious prosecution in the amount of $15,000. The

trial court denied the defendants' motion to set aside the

verdict and entered judgment in accordance with the verdict.

On appeal, the defendants argue that the Webbers failed to

prove that Stanley initiated the grand larceny prosecution

without probable cause to believe that the crime had been

committed. The defendants contend that the evidence showed that

Stanley reasonably believed that the Webbers had taken an oven

belonging to Steak & Ale, and that the Webbers lacked a

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legitimate ownership claim to the oven because the restaurant

had not yet received its replacement oven. Thus, the defendants

assert that, as a matter of law, Stanley maintained a reasonable

belief under the facts and circumstances that the Webbers had

committed the crime of grand larceny. The defendants also argue

that the Webbers actually were guilty of grand larceny, and that

their guilt was a complete defense to the malicious prosecution

actions.

In response, the Webbers contend that the defendants'

arguments are without merit because they depend on the

resolution of factual issues that were properly submitted to the

jury. The Webbers assert that the jury resolved the issue of

probable cause in their favor, and that the evidence supports

the jury's conclusion. They also argue that since the

defendants lacked probable cause to institute the criminal

charges and there was no additional evidence indicating that the

crime had been committed, the evidence failed as a matter of law

to establish that they were guilty of grand larceny. We agree

with the Webbers.

In deciding this appeal, we apply an established standard

of review. When parties come before us with a jury verdict that

has been approved by the trial court, they hold the most favored

position known to the law. Lumbermen's Underwriting Alliance v.

Dave's Cabinet, Inc., 258 Va. 377, 380, 520 S.E.2d 362, 365

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(1999); Smith v. Litten, 256 Va. 573, 578, 507 S.E.2d 77, 80

(1998); Evaluation Research Corp. v. Alequin, 247 Va. 143, 147,

439 S.E.2d 387, 390 (1994). The trial court's judgment is

presumed to be correct, and we will not set it aside unless the

judgment is plainly wrong or without evidence to support it.

Code § 8.01-680; Lumberman's Underwriting Alliance, 258 Va. at

381, 520 S.E.2d at 365; Evaluation Research Corp., 247 Va. at

147-48, 439 S.E.2d at 390.

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.

Hudson, 255 Va. at 333, 497 S.E.2d at 473; 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). In the

present case, the defendants contest the sufficiency of the

evidence to support the jury's finding that they instituted the

criminal charges without probable cause.

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. Lee, 219 Va. at 26, 244 S.E.2d at 758-

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59; Bain, 217 Va. at 394, 228 S.E.2d at 581; Gaut v. Pyles, 212

Va. 39, 41, 181 S.E.2d 645, 647 (1971). 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. Bill Edwards

Oldsmobile, Inc. v. Carey, 219 Va. 90, 98, 244 S.E.2d 767, 773

(1978); Bain, 217 Va. at 394, 228 S.E.2d at 581. 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. Lee,

219 Va. at 27, 244 S.E.2d at 759; Giant of Virginia, Inc. v.

Pigg, 207 Va. 679, 684, 152 S.E.2d 271, 275 (1967); Brodie v.

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

We consider the elements of the crime of grand larceny in

determining whether there was sufficient evidence to support the

jury's finding that the defendants lacked probable cause to

initiate these charges. Larceny, a common law crime, is the

wrongful or fraudulent taking of another's property without his

permission and with the intent to permanently deprive him of

that property. Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998); Bryant v. Commonwealth, 248 Va. 179,

183, 445 S.E.2d 667, 670 (1994). Under Code § 18.2-95, grand

larceny includes a taking, not from the person of another, of

goods having a value of $200 or more. Taylor, 256 Va. at 518,

506 S.E.2d at 314.

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 There can be no larceny if an accused, in good faith,

believes that the property taken belongs to him, since the

essential element of intent is absent in that circumstance. Id.

at 519, 506 S.E.2d at 314; Pierce v. Commonwealth, 205 Va. 528,

533, 138 S.E.2d 28, 32 (1964); Butts v. Commonwealth, 145 Va.

800, 811-12, 133 S.E. 764, 767-68 (1926). Intent may, and often

must, be inferred from the facts and circumstances of the case,

including the actions of the accused and any statements made by

him. Taylor, 256 Va. at 519, 506 S.E.2d at 314; see Guill v.

Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492 (1998);

Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314

(1979).

The evidence in the present case was disputed on the issue

whether the defendants had probable cause to initiate the

criminal charges against the Webbers. Todd Webber testified

that he and Stanley agreed that he would provide the parts and

labor to repair the oven and that, in return, Steak & Ale would

allow him to take the oven as payment for his services when

Stanley received her new oven in "30 days or so, whatever."

Donald Webber's testimony essentially corroborated Todd Webber's

statement concerning the terms of the oral agreement.

The jury could reasonably infer from this testimony that

under the parties' agreement, the oven belonged to the Webbers

once they repaired it, although they agreed to allow Stanley to

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retain possession of it for a brief period thereafter.

Alternatively, the jury could infer from the testimony that the

parties' agreement transferred ownership of the oven to the

Webbers about 30 days after they repaired it. Either conclusion

also was supported by the receipt signed by Stanley, which

indicated that the oven constituted payment for the June 1995

invoice, and that this payment was supposed to have been made

around August 1995.

Under either of these views of the evidence, the defendants

lacked probable cause to initiate the grand larceny charges

because the Webbers did not intend to permanently deprive Steak

& Ale of any property owned by it, and Stanley knew this fact

when she initiated the criminal charges. Thus, we hold that the

evidence was sufficient to support the jury's determination that

the defendants initiated the criminal prosecutions against the

Webbers without probable cause.

We find no merit in the defendants' additional argument

that these malicious prosecution actions were barred because the

Webbers actually were guilty of grand larceny. The jury was

instructed that proof of the actual guilt of the person accused

is a complete defense to a malicious prosecution action. See

Wiggs v. Farmer, 205 Va. 149, 152, 135 S.E.2d 829, 831 (1964);

Horne v. Bridwell, 193 Va. 381, 389, 68 S.E.2d 535, 540 (1952).

By its verdict, the jury rejected the defendants' assertion that

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the Webbers were guilty of grand larceny, and the evidence

stated above supports the jury's determination on this issue.

Therefore, we hold that the trial court's judgment is not

plainly wrong or without evidence to support it.

For these reasons, we will affirm the trial court's

judgment.

Affirmed.

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