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
2
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.
3
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-
4
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
5
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
6
(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-
7
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.
8
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
9
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
10
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.
11