Justia.com Opinion Summary: Employee of a railway company was accused by his Employer of stealing rail. After it was discovered that Employee was involved in the removal and sale of the rail, Employee's employment was terminated. An arbitration panel reinstated Employee's employment the next year. Employer then submitted the matter to an assistant prosecutor. Employee was never arrested or incarcerated. Employee subsequently sued Employer for malicious prosecution. During the trial, the circuit court granted Employee's motion for judgment as a matter of law on the issue of whether Employer had procured his prosecution, which was one element of his required proof. The jury then returned a verdict in favor of Employee. The circuit court denied Employer's motions for judgment as a matter of law, new trial, or remittitur. The Supreme Court reversed the circuit court's order denying Employer's post-trial motions, holding that the circuit court committed reversible error by determining as a matter of law that Employer procured the malicious prosecution of Employee where testimony of the assistant prosecutor directly contradicted the proposition that Employer had a level of control over the prosecution amounting to procurement. Remanded for a new trial.
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2011 Term
_______________
FILED
November 23, 2011
released at 3:00 p.m.
No. 101499
R O R Y L. P E R R Y II, C LE R K
S U P R E M E C O U R T O F AP P E ALS
O F W E S T V IR G IN IA
_______________
NORFOLK SOUTHERN RAILWAY COMPANY, NORFOLK SOUTHERN
CORPORATION, JAMES D. FARLEY, and CHARLES PAXTON,
Petitioners Below, Petitioners
v.
JAMES W. HIGGINBOTHAM,
Respondent Below, Respondent
__________________________________________________
Appeal from the Circuit Court of Mason County
The Honorable David W. Nibert, Judge
Civil Action No. 05-C-12
REVERSED AND REMANDED
__________________________________________________
Submitted: September 27, 2011
Filed: November 23, 2011
Scott K. Sheets, Esq.
Huddleston Bolen
Huntington, West Virginia
James S. Whitehead-PHV
Sidley Austin, LLP
Chicago, Illinois
Counsel for Petitioners
Marvin W. Masters, Esq.
The Masters Law Firm
Charleston, West Virginia
David L. White, Esq.
Law Office of David L. White
Charleston, West Virginia
Counsel for Respondent
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1.
“‘To maintain an action for malicious prosecution it is essential to prove
(1) that the prosecution was malicious, (2) that it was without reasonable or probable cause,
and (3) that it terminated favorably to plaintiff.’ Syl. pt. 1, Lyons v. Davy-Pocahontas Coal
Co., 75 W.Va. 739, 84 S.E. 744 (1915).” Syl. pt. 1, Preiser v. MacQueen, 177 W. Va. 273,
352 S.E.2d 22 (1985).
2.
“‘In an action for malicious prosecution, plaintiff must show: (1) that
the prosecution was set on foot and conducted to its termination, resulting in plaintiff’s
discharge; (2) that it was caused or procured by defendant; (3) that it was without probable
cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not
recover.’ Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. [114 S.E. 746].” Syl. pt. 3, Truman
v. Fidelity & Casualty Co. of New York, 146 W. Va. 707, 123 S.E.2d 59 (1961).
3.
The rules delineating the elements of a malicious prosecution claim in
syl. pt. 1, Preiser v. MacQueen, 177 W. Va. 273, 352 S.E.2d 22 (1985), and syl. pt. 3,
Truman v. Fidelity & Casualty Co. of New York, 146 W. Va. 707, 123 S.E.2d 59 (1961), are
the same, and procurement is an inherent element in both.
i
4.
“‘Upon a motion for [pre-verdict judgment as a matter of law], all
reasonable doubts and inferences should be resolved in favor of the party against whom the
verdict is asked to be directed.’ Syllabus point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d
260 (1973).” Syl. pt. 1, Stanley v. Chevathanarat, 222 W. Va. 261, 664 S.E.2d 146 (2008).
ii
Benjamin, Justice:
This case is before the Court upon the appeal of the defendants below Norfolk
Southern Railway Company, Norfolk Southern Corporation, James D. Farley, and Charles
Paxton (hereinafter “petitioners”). In this malicious prosecution case, the petitioners appeal
from the March 24, 2010, final order of the Circuit Court of Mason County, in which the
circuit court denied their post-trial motions for judgment as a matter of law, a new trial, and
remittitur. The petitioners contend, inter alia, that the circuit court erred in not granting its
motions because the court incorrectly found at trial that the petitioners had procured the
prosecution of the plaintiff below, James W. Higginbotham (hereinafter “respondent”), as
a matter of law. After a thorough review of the record presented for consideration, the briefs,
the legal authorities cited, and the arguments of the petitioners and the respondent, we find
that the circuit court committed reversible error by determining as a matter of law that the
petitioners procured the malicious prosecution of the respondent. We therefore reverse the
circuit court’s order denying the petitioners’ post-trial motions and remand this case for
proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
1
The respondent has worked for various railroads since 1964. He became an
employee of Norfolk Southern Corporation in 1998 when the railroad he was working for at
the time, Conrail, merged with Norfolk Southern Corporation. The respondent was also the
part owner of a construction business, RJW Construction (hereinafter “RJW”), for which he
worked for 27 years. RJW’s business consisted primarily of installing and maintaining rail
road tracks for private plants, coal facilities, and similar ventures. RJW often bought rail and
other equipment to construct tracks.
This case arose from the petitioners’ accusation that the respondent stole rail
the petitioners claimed to own. The rail in question was located in a remote area of Kanawha
County known as Blue Creek.1 The alleged scheme to steal the Blue Creek rail revolved
around the activities of four men: the respondent; the respondent’s longtime business
associate and local scrap rail dealer, Charles Chandler; a rail dealer from Florida who had
previously dealt with the respondent, David Clark; and a CSX employee, Thomas Crawford.
According to the respondent, Mr. Crawford forged a document indicating that
CSX claimed ownership of the Blue Creek rail and that it authorized the removal and sale
of the rail. In May of 2000, Mr. Chandler paid Mr. Crawford cash for the forged document
1
The section of the Blue Creek rail at issue here had not been in use for more than 20
years before its removal.
2
with the knowledge that the document was forged. Mr. Chandler presented the document to
the respondent, and the respondent agreed to broker the sale of the Blue Creek rail between
Mr. Chandler and Mr. Clark. Mr. Chandler used one of RJW’s backhoes to remove the rail.
The respondent brokered the sale of a portion of 105 pound rail2 to Mr. Clark for $10,000.
Mr. Clark also paid the respondent $6,500 for inspecting the rail on his behalf. Additionally,
the respondent paid Mr. Chandler $10,000 for a portion of 127 pound rail.
Sometime after the commencement of the removal of the Blue Creek rail, a
Norfolk Southern supervisor, Mark Lonsinger, became aware that the Blue Creek rail was
being removed and sold.3 Mr. Lonsinger informed the Norfolk Southern Division Engineer,
Phillip Merilli, that he had a report that CSX was selling the rail. In response, Mr. Merilli
sent Mr. Lonsinger to Blue Creek to investigate the removal and sale of the Blue Creek rail
which Mr. Merilli believed Norfolk Southern owned, not CSX. Mr. Lonsinger found Mr.
Chandler removing the rail, at which time Mr. Chandler presented the forged CSX document
2
Not all rail is made alike. The different types of rail are usually measured and
described in pounds per yard. “Pounds per yard” is often abbreviated simply to “pounds.”
Thus, “105 pound rail” refers to rail that is 105 pounds per yard of rail.
3
The parties dispute exactly how Mr. Lonsinger became aware of the removal of the
rail. The circuit court’s March 24, 2010, order states that “[t]he jury heard evidence that the
only reason the defendants knew the rail was being removed at all was because the Plaintiff,
their long-time employee, told them.” The petitioners state in their brief to this Court, “. .
. Higginbotham mentioned to NS Track Supervisor Mark Lonsinger . . . that he had heard
CSX was selling rail at Blue Creek. This statement was not truthful, as Higginbotham knew
that Chandler, and not CSX, was “selling” the rail . . . .” (Emphasis in original) (internal
citation ommitted).
3
to Mr. Lonsinger.
Upon receiving Mr. Lonsinger’s report that the rail was actually being removed
and sold, Mr. Merilli sent Mr. Lonsinger back to Blue Creek with Norfolk Southern Police
Department Special Agent Paxton for additional investigation.4 Upon discovering that the
respondent was involved in the removal and sale of the rail, Lonsinger took the respondent
out of service for Norfolk Southern, and a formal investigatory hearing was held. After a
hearing in 2000, the respondent’s employment was terminated; however, an arbitration panel5
reinstated his employment in 2001.6
After the arbitration panel reinstated the respondent’s employment, the Norfolk
Southern officers submitted the matter to the assistant prosecutor, Robert Schulenberg.
Between his receipt of the matter and his submission of the case to a grand jury two years
later, Norfolk Southern police contacted Mr. Schulenberg approximately once per month,
totaling 29 calls. The petitioners claim that the frequency of the calls is in accordance with
4
Under W. Va. Code § 61-3-41, railroad special police officers are commissioned by
the Governor and have the authority of deputy sheriffs.
5
The arbitration panel was a neutral Public Law Board created pursuant to the Railway
Labor Act, 45 U.S.C. §§ 151–164. (1996).
6
The circuit court’s March 24, 2010, order states that the arbitration panel found that
the respondent “did not knowingly steal the rail.” The record indicates that although the
respondent’s employment was reinstated, the year he was off of work was deemed a
suspension during which time he received no back pay.
4
standard practice for the Norfolk Southern police. At his request, the petitioners provided
Mr. Schulenberg with assistance by gathering additional facts. Norfolk Southern also
provided written statements taken from Mr. Chandler, Mr. Crawford, and Mr. Lonsinger; the
Norfolk Southern police report; and documentary evidence found in the respondent’s
company vehicle. Mr. Schulenberg then presented the case to the grand jury to pursue
indictments against the respondent, Mr. Clark, and Mr. Crawford.7
The petitioners acknowledged that an error was made by the Norfolk Southern
police in their report which indicated that the respondent, instead of Mr. Chandler, had dealt
directly with Mr. Crawford in procuring the forged CSX document. The petitioners also
acknowledge that upon presenting the case to the grand jury, Norfolk Southern’s Special
Agent Farley8 made erroneous statements about the events surrounding the case to the grand
jury.9 The respondents contend, however, that Special Agent Farley’s statements were made
7
Mr. Schulenberg testified at trial in the malicious prosecution proceeding that he
alone made the decision to pursue prosecution against the respondent. He stated that he
decided what evidence to subpoena, whether there was probable cause to present the case to
the grand jury, which witnesses to subpoena to testify before the grand jury, and what charges
to seek in the grand jury indictments.
8
Special Agent Farley replaced Special Agent Paxton as the Norfolk Southern officer
assigned to the Blue Creek rail case when Special Agent Paxton retired on December 31,
2000.
9
Special Agent Farley testified that Mr. Clark had written a check for $10,000 to the
respondent for the rail, when in actuality no such check existed; the check to which Special
Agent Farley referred was written by Mr. Clark to Mr. Chandler. He also stated that the rail
(continued...)
5
from his memory of the events and that he believed at the time that the statements were
truthful.
The Kanawha County grand jury indicted the respondent, Mr. Chandler, and
Mr. Clark. The respondent was never arrested or incarcerated, and a $500 bond he posted
was ultimately returned to him. The indictments against the three men were all dismissed
over a year later.10 The respondent then pursued the malicious prosecution suit which
underlies this appeal.
The trial of the malicious prosecution claim began on August 28, 2007. At the
close of the respondent’s case in chief, the respondent moved for a judgment as a matter of
law on the issue of whether the petitioners had procured his prosecution, which is one
element of his required proof. The petitioners simultaneously moved for a complete
judgment as a matter of law. The circuit court denied the petitioners’ motion, but it granted
the respondent’s motion. At that time the petitioners had not presented their case in chief.
The petitioners again moved for judgment as a matter of law at the close of the trial. Again
9
(...continued)
removal scheme resulted in the removal of 105 pound rail and 107 pound rail, which was also
incorrect. The rail in question was 105 pound rail and 127 pound rail.
10
The record shows that the charges were dismissed by the Circuit Court of Kanawha
County which found, inter alia, the rail at issue in the case had been abandoned as a matter
of law.
6
the circuit court denied the motion. The court instructed the jury as to the finding of
procurement as a matter of law, but it submitted the questions as to the other elements of
malicious prosecution at issue—probable cause and malice—to the jury.
The jury returned a verdict in favor of the respondent. The verdict included
an award of $420,000 in damages. The circuit court entered the judgment order in favor of
the respondent on December 4, 2007. On December 17, 2007, the respondents filed a motion
for judgment as a matter of law, new trial, or remittitur. Two and a half years later, on March
24, 2010, the circuit court entered a final order denying the petitioners’ post trial motions.
In its final order, the circuit court found “that the undisputed evidence indicates that the
defendants did in fact procure the prosecution.” The circuit court supported its conclusion
by referencing the error in the police report that Norfolk Southern provided to the assistant
prosecutor and the false testimony given to the grand jury which the court believed “placed
Mr. Higginbotham even more squarely into the mix and made it appear he was guilty of theft
and was getting paid for it.” The circuit court continued by stating that “the defendants
adduced no evidence whatsoever to support that conclusion.” The court then made reference
to facts presented at trial that it believed indicated that the petitioners’ actions toward the
respondent were intended to “get Mr. Higginbotham indicted and convicted to take him off
their payroll.”
7
The petitioners now appeal the circuit court’s final order denying their motions.
II.
STANDARD OF REVIEW
The petitioners seek relief from the circuit court’s order denying their motions
for judgment as a matter of law, new trial, or remittitur. The errors giving rise to these
motions, they claim, are the result of the circuit court’s finding that as a matter of law, the
petitioners had procured the prosecution of the respondent.
This Court “appl[ies] a de novo standard of review to the grant or denial of a
pre-verdict or post-verdict motion for judgment as a matter of law.” Gillingham v.
Stephenson, 209 W. Va. 741, 745, 551 S.E.2d 663, 667 (2001). With this standard in hand,
we turn now to the case at bar.
III.
DISCUSSION
The dispositive issue raised by the petitioners here is whether the circuit court
correctly held as a matter of law that the petitioners procured the malicious prosecution of
the respondent. Procurement is an element of malicious prosecution. We note at this point
that this Court has articulated in two separate lines of cases delineating the elements of
8
malicious prosecution. The first line of cases uses a three element rule: “‘To maintain an
action for malicious prosecution it is essential to prove (1) that the prosecution was
malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated
favorably to plaintiff.’ Syl. pt. 1, Lyons v. Davy-Pocahontas Coal Co., 75 W.Va. 739, 84 S.E.
744 (1915).” Syl. pt. 1, Preiser v. MacQueen, 177 W. Va. 273, 352 S.E.2d 22 (1985). In the
second line of cases, this Court has held that
“[i]n an action for malicious prosecution, plaintiff must show:
(1) that the prosecution was set on foot and conducted to its
termination, resulting in plaintiff’s discharge; (2) that it was
caused or procured by defendant; (3) that it was without
probable cause; and (4) that it was malicious. If plaintiff fails to
prove any of these, he can not recover.” Radochio v. Katzen, 92
W.Va. 340, Pt. 1 Syl. [114 S.E. 746].
Syl. pt. 3, Truman v. Fidelity & Casualty Co. of New York, 146 W. Va. 707, 123 S.E.2d 59
(1961).
At first blush, these two rules seem inconsistent in that the Preiser rule does
not specifically state that procurement is an element of malicious prosecution that must be
proved. However, the Court noted in Preiser that the definition of “malicious prosecution”
in Black’s Law Dictionary 864 (5th ed. 1979), is consistent with the rule provided in its first
syllabus point. Preiser, 177 W. Va. at 275 n.3, 352 S.E.2d at 24 n.3. That definition provides
as follows:
Elements of a cause of action for malicious prosecution are: (1)
9
commencement of prosecution of proceedings against present
plaintiff; (2) its legal causation by present defendant; (3) its
termination in favor of present plaintiff; (4) absence of probable
cause for such proceedings; (5) presence of malice therein; and
(6) damage to plaintiff by reason thereof.
In Black’s Law Dictionary’s definition, the first two elements are equivalent
to the meaning of procurement.11 Because the Court found that the definition of malicious
prosecution is consistent with its first syllabus point in Preiser, it is clear that the three-part
rule in its first syllabus point embodies the element of procurement. Therefore, we hold that
the rules delineating the elements of a malicious prosecution claim in syl. pt. 1, Preiser v.
MacQueen, 177 W. Va. 273, 352 S.E.2d 22 (1985), and syl. pt. 3, Truman v. Fidelity &
Casualty Co. of New York, 146 W. Va. 707, 123 S.E.2d 59 (1961), are the same, and
procurement is an inherent element in both.
As to whether a circuit judge should grant a motion for judgment as a matter
of law during trial, Rule 50 of the West Virginia Rules of Civil Procedure controls:
(a) Judgment as a matter of law. — (1) If during trial by jury a
party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that
party on that issue, the court may determine the issue against
that party and may grant a motion for judgment as a matter of
law against that party with respect to a claim or defense that
11
See expanded discussion infra on the meaning of “procurement” within our case law.
10
cannot under the controlling law be maintained or defeated
without a favorable finding on that issue.
This Court has stated that “‘[u]pon a motion for [pre-verdict judgement as a matter of law],
all reasonable doubts and inferences should be resolved in favor of the party against whom
the verdict is asked to be directed.’ Syllabus point 5, Wager v. Sine, 157 W.Va. 391, 201
S.E.2d 260 (1973).” Syl. pt. 1, Stanley v. Chevathanarat, 22 W. Va. 261, 664 S.E.2d 146.
We have further noted that “judgment as a matter of law should be granted at the close of the
evidence when, after considering the evidence in the light most favorable to the nonmovant,
only one reasonable verdict is possible.” Barefoot v. Sundale Nursing Home, 193 W. Va. 475,
481 n.6, 475 S.E.2d 152, 158 n.6 (1995). Thus, judgment as a matter of law is only
appropriate when a reasonable person could only reach one conclusion.
In this case, the parties dispute the meaning of “procurement.” In its final
order, the circuit court found “that the undisputed evidence indicates that the defendants did
in fact procure the prosecution.” The circuit court supported its conclusion by referencing
the error in the police report and the erroneous testimony given to the grand jury. The circuit
court then went on to apply our language in Vinal v. Core, 18 W. Va. 1, 25 (1881),
superceded by statute on other grounds: “By instigated and procured is meant instigation and
procurement in the ordinary meaning of this language.” Other than to state in conclusory
fashion that “the fact of the matter is that they instigated and procured Mr. Higginbotham’s
11
prosecution - plain and simple,” the circuit court does not explain what it believes to be the
ordinary meaning of “procurement.”
The circuit court cut its procurement analysis short by hanging its hat on the
above general “instigation and procurement” language in Vinal. Vinal, however, provides
additional direction as to the meaning of procurement within the context of a malicious
prosecution.
The Vinal Court states: “[The meaning of procurement is] not that the
defendants jointly applied to the justice [of the peace] to issue the warrant against the
plaintiff, but that they consulted and advised together, and both participated in the
prosecution, which was carried on under their countenance and approval.” Vinal, 18 W. Va.
at 2. Therefore, Vinal requires that to have proved procurement in this case, the respondent
must have shown that the defendants consulted with and advised each other regarding the
prosecution, that the defendants participated in the prosecution, and that the prosecution was
carried out under the defendants’ countenance and approval.
From this meaning of “procurement” in Vinal, it is apparent that procurement
within the meaning of a malicious prosecution suit requires more than just the submission
of a case to a prosecutor; it requires that a defendant assert control over the pursuit of the
prosecution. The level of control necessary to prove procurement is not explicitly delineated
in our case law, but we have previously addressed the issue of procurement in the context of
12
some of our other malicious prosecution cases. A comparison of the facts and holdings in
these cases with the case at bar is illuminating.
In Vinal, the Court found that the defendant procured the prosecution of the
plaintiff. In that case, the Court recognized that both the prosecutors and the defendants
knew that the plaintiff had not stolen rent-oil but that they had him arrested for theft of the
oil anyway. Vinal, 18 W. Va. at 5. Vinal is distinguishable from the case before us. Here,
at the time the case was submitted to the assistant prosecutor, there was a question as to
whether either the assistant prosecutor or the petitioners knew that the respondent did not
knowingly participate in rail theft. There is also the testimony of the assistant prosecutor that
he alone, after conducting an investigation, made the decision to seek an indictment against
the respondent. The jury could have concluded that the petitioners believed the respondent
was involved in stealing the rail in this case, and so it would be reasonable to find that the
petitioners’ control in the prosecution did not rise to the level of procurement.
We also have Truman v. Fidelity & Casualty of New York, 146 W. Va. 707, 123
S.E.2d 59 (1961), in which the Court found that the defendant had not procured the
prosecution of the plaintiff. In that case, the defendant investigated suspected insurance
fraud by the plaintiff. The defendant then submitted the evidence it collected to the
prosecutor. The Court said, “there is nothing to indicate that any steps toward prosecution
13
whatsoever were actually taken by the defendant’s agents or employees after the evidence
in their hands was left with the prosecuting attorney.” Truman, 146 W. Va. at 729, 123
S.E.2d at 72.
The circuit court claims that Truman is factually distinguishable from this case
because the petitioners’ agent, Special Agent Farley, testified before the grand jury. The
respondent also finds the cases factually dissimilar because after the petitioners submitted
the evidence they collected to the prosecutor, they called the prosecutor 29 times or
approximately once per month about the status of the case. Additionally, the petitioners
gathered evidence for the prosecutor at his request.
We find that none of these facts taken individually or together indisputably
demonstrates that the petitioners’ control over the prosecution of this case amounted to
procurement. While Special Agent Farley did testify to the grand jury, the evidence indicates
that this was at the request of the assistant prosecutor; there was no evidence presented
showing that the petitioners insisted they be provided with the opportunity to testify to the
grand jury. As for the 29 phone calls, the evidence shows that these were the result of a
standard procedure of the Norfolk Southern police, not an attempt to place pressure on the
assistant prosecutor to proceed with an indictment. Finally, the additional evidence collected
by the petitioners after the initial submission of the case to the assistant prosecutor was
14
collected at the request of the assistant prosecutor. The assistant prosecutor then used that
evidence, according to his testimony, to make an independent decision to prosecute. Based
on the evidence introduced at trial, it is clear that reasonable minds could differ as to whether
the petitioners’ involvement in the prosecution amounted to procurement. Stated differently,
it is reasonable to conclude based upon the facts of this case that the decisions relating to
prosecution were in the hands of the prosecution.
Our case law is admittedly limited regarding the explicit meaning and scope
of procurement, particularly regarding the amount of control over a prosecution a defendant
must have before it can be found to have procured that prosecution. Other jurisdictions,
however, have explored the topic in more detail. For instance, in Texas, there is no
procurement when “the decision whether to prosecute is left to the discretion of another
person, a law enforcement officer or the grand jury . . . . An exception . . . occurs when a
person provides information which he knows is false to another to cause a criminal
prosecution.” Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994)
(emphasis in original). In Ohio, there is no procurement when “an informer merely provides
a statement of his belief of criminal activity and leaves the decision to prosecute entirely to
the uncontrolled discretion of the prosecutor.” Robbins v. Fry, 594 N.E.2d 700, 702 (Ohio
Ct. App. 1991). Moreover, the New Mexico Supreme Court has noted that
citizens must have “wide latitude in reporting facts to authorities
15
so as not to discourage the exposure of crime.” Zamora, 106
N.M. at 634, 747 P.2d at 929. “Efficient law enforcement
requires that a private person who aids the police by giving
honest, even if mistaken, information about crime, should be
given effective protection from civil liability.”
Westar Mortg. Corp. v. Jackson, 61 P.3d 823, 831 (N.M. 2002).
We find that the meaning of procurement as determined by these other
jurisdictions compliments the meaning and the spirit of our law. Therefore, we find that the
circuit court prematurely granted the respondent’s motion for judgment as a matter of law.
The circuit court incorrectly found that there was no legally sufficient evidentiary basis for
which the jury could have found that the petitioners had not procured the prosecution of the
respondent. The testimony of the assistant prosecutor directly contradicts the proposition that
the petitioners had a level of control over the prosecution amounting to procurement. Thus,
whether the petitioners procured the prosecution of the respondent is a question of fact, and
that the question of procurement should have been submitted to the jury.
Insofar as we have established that the circuit court has erred regarding the
issue of procurement and that this case must be remanded for further proceedings, we need
not address the petitioners’ additional assignments of error.12
12
The petitioners presented a total of 5 assignments of error on which it predicated this
(continued...)
16
IV.
CONCLUSION
For the reasons set forth above, this Court reverses the circuit court’s order
entered March 24, 2010, which denies the petitioners’ motions for judgment as a matter of
law, new trial, or remittitur. We remand this case to the circuit court for a new trial
consistent with this opinion.
12
(...continued)
appeal:
1. The Trial Court committed clear error by denying Petitioners
summary judgment or judgment as a matter of law, as
Petitioners did not procure Respondent’s prosecution, there was
probable cause for Respondent’s prosecution, and the
prosecution was not malicious.
2. The Trial Court committed clear error by denying Petitioners
summary judgment or judgment as a matter of law, as
Petitioners were entitled to the absolute defense of advice of
counsel.
3. The Trial Court committed clear error by denying Petitioners
immunity in the performance of official duties.
4. The Trial Court committed clear error in allowing the award
of compensatory damages to stand, as it had no basis in fact.
5. The Trial Court committed clear error in upholding the
punitive damage award.
17
Reversed and remanded.
18
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