Summary
holding impermissible actions must take place after process is issued for abuse of process claim to he
Summary of this case from Benjamin M. Smith, Jr., TRUSTEE, et al. v. Miller and Smith at Pembrooke, LLC, et al.Opinion
46061 Record No. 870591
June 9, 1989
Present: All the Justices
Because the plaintiff failed to establish the required second element of an abuse of process action, the trial court erred in refusing to sustain the defendant's motion to strike the evidence; that judgment is reversed and final judgment is entered on behalf of the defendant.
Practice and Procedure — Motions to Strike Evidence — Abuse of Process — Elements — Debts
The defendant is a wholesaler of used cars who sold a used car dealer several automobiles for which payment was made with three checks which were returned by the bank to the seller for insufficient funds in the buyer's account. Over the course of the next month, funds were credited toward the debt and the buyer sent the seller titles of six cars he owned as collateral for the debt. However, a large portion of the debt remained unpaid and the seller swore out warrants against the buyer for grand larceny by bad check. The day before a preliminary hearing on the criminal charges, the buyer paid the balance of the debt. The buyer then brought this civil action against the seller for malicious abuse of process in its attempt to collect the debt. The jury returned a large verdict in favor of the buyer for compensatory and punitive damages. The trial court overruled the seller's motion to set aside the verdict and entered judgment of the jury verdict. The seller appeals.
1. Abuse of process involves the wrongful use of process after it has been issued and the essential elements of the claim are (1) the existence of an ulterior purpose and (2) an act in the use of the process not proper in the regular prosecution of the proceedings.
2. The Court assumes without deciding that sufficient evidence existed to support the jury's finding that the seller had an ulterior purpose in the prosecution.
3. The actions cited by the buyer in support of the second requirement for abuse of process all occurred prior to the swearing out of the warrants and the buyer failed to present any evidence demonstrating that the seller took any action which abused or perverted the criminal prosecution for bad checks subsequent to the issuance of process.
4. Because the buyer failed to establish the required second element of an abuse of process action, the trial court erred in refusing to sustain the seller's motion to strike the evidence.
Appeal from a judgment of the Circuit Court of the City of Lynchburg. Hon. Richard S. Miller, judge presiding.
Reversed and final judgment.
David W. Mullen for appellant.
Joseph R. Johnson, Jr.; David D. Embrey (Johnson Cunningham, on brief), for appellee.
In this case, we consider whether Triangle Auto Auction, Inc. engaged in actions constituting malicious abuse of process in its attempt to recover funds owed by Daniel F. Cash.
On May 5, 1986, Daniel Cash filed a motion for judgment alleging malicious abuse of process against Triangle Auto Auction, Inc. (Triangle) alleging that Triangle "sued out a criminal process against [Cash] and caused his arrest thereunder, not for the purpose of enforcing the criminal laws of the Commonwealth, but solely for the ulterior and unlawful purpose of enforcing the collection of a debt."
The jury returned a verdict in favor of Cash for $130,000 in compensatory damages and $50,000 in punitive damages. The trial court overruled Triangle's motion to set aside the verdict and entered judgment on the jury verdict. The trial court stated that the "facts depicted an aggravated use of criminal process by the defendant to enforce the collection of a debt, which is the essence of the tort of abuse of process, and the jury so found."
Triangle appeals a number of the trial court's rulings. The dispositive issue, however, is whether the trial court erred in denying Triangle's motions to strike the evidence and to set aside the jury verdict.
Abuse of process involves the wrongful use of process after it has been issued. The essential elements of an abuse of process claim are "(1) the existence of an ulterior purpose; and (2) an act in the use of the process not proper in the regular prosecution of the proceedings." Donohoe Construction v. Mount Vernon Assoc., 235 Va. 531, 539, 369 S.E.2d 857, 862 (1988); Mullins v. Sanders, 189 Va. 624, 633, 54 S.E.2d 116, 121 (1949); Glidewell v. Murray-Lacy, 124 Va. 563, 570, 98 S.E. 665, 668 (1919). Because Cash prevailed at trial, we must state the evidence in the light most favorable to him in determining whether both elements of the standard were satisfied.
Triangle is a wholesaler of used cars in Radford. Daniel Cash owned and operated a used car business in Lynchburg. Cash purchased several automobiles from Triangle and paid for the cars with three checks dated November 12, 19, and 26, 1984, totalling $16,423. Triangle deposited the checks but they were returned due to insufficient funds. On December 4, 6, and 12, Triangle sent Cash letters notifying him that the checks had been returned and that warrants necessary for prosecution would be secured if the debts were not paid within five days of the notice pursuant to Code Sections 18.2-181 and 18.2-183. Triangle also contacted Cash by telephone concerning the debts.
On November 29, 1984, Triangle credited $2,457 toward Cash's debt as a result of funds received from the sale of a car owned by Cash. On December 17, 1984, Cash sent Triangle the titles for six cars owned by Cash. These titles represented collateral for the debt, but Cash neither signed over the titles to Triangle nor made dealer assignments in favor of Triangle. On December 28, Cash paid Triangle $2,000 on the debt, leaving a balance of approximately $12,000.
On December 21, Triangle swore out warrants against Cash for grand larceny by bad check. The warrants were served on Cash on December 31, 1984. A preliminary hearing on the felony bad check charges was scheduled for February 8, 1985. On February 7, Cash paid Triangle the unpaid balance of the checks. At the February 8 hearing, Triangle informed the Commonwealth's Attorney that restitution had been made. The Commonwealth's Attorney proceeded to dismiss the charges. On February 26, 1985, Cash paid Triangle $438.74 in interest and Triangle returned the car titles to him.
Cash argues that Triangle's prosecution of him was used as leverage to collect a debt rather than to advance the interests of justice. He maintains that this ulterior purpose, the first element in abuse of process, is shown by Triangle's delay of more than a month between receiving the returned checks and swearing out the warrants. From this evidence, according to Cash, the jury could have inferred that Triangle's purpose in swearing out the warrants was solely to collect payment on the checks. We assume without deciding that sufficient evidence existed to support the jury's finding that Triangle had an ulterior purpose.
The second prong of the claim requires a showing of some "perversion of regularly-issued process to accomplish some ulterior purpose for which the procedure was not intended." Donohoe, 235 Va. at 539, 369 S.E.2d at 862. To establish this element, Cash testified that agents of Triangle threatened to send him to jail if prompt payment was not made. Secondly, Cash contends Triangle's failure to give the Commonwealth's Attorney complete information on the factual situation before issuing the warrants was an act "not proper in the regular prosecution of the warrants." Cash showed that the policy of the Commonwealth Attorney's Office was not to prosecute "[c]hecks which have been held by the payee for payment by agreement." Cash maintains that Triangle's agreement to hold the checks bending payment was shown by acceptance of partial payment and the six car titles as collateral with full payment forthcoming in 30 to 45 days.
The actions cited by Cash in support of the second prong of his abuse of process claim all occurred prior to Triangle's swearing out the warrants. Cash failed, however, to present any evidence demonstrating that Triangle took any action which abused or perverted the criminal prosecution for bad checks subsequent to the issuance of process. After December 21, 1985, the date the warrants were issued, Triangle's only actions were accepting a $2,000 payment on December 28, and stating, at the February 8 hearing, that restitution had been made on February 7.
Cash argues that it is immaterial whether the offending acts occur before or after process is issued. We, however, continually have held that abuse of process "lies in the abuse or the perversion of the process after it has been issued." Donohoe, 235 Va. at 540, 369 S.E.2d at 862 (emphasis added).
Because Cash failed to establish the required second element of an abuse of process action, the trial court erred in refusing to sustain Triangle's motion to strike the evidence. Accordingly, we will reverse the judgment of the trial court and enter final judgment on behalf of Triangle.
Reversed and final judgment.