Triangle Auto Auction, Inc. v. Cash

• Decision Date: 09 June 1989
• Docket Number: No. 870591,870591
• Citation: 238 Va. 183,380 S.E.2d 649
• Parties: TRIANGLE AUTO AUCTION, INC. v. Daniel F. CASH. Record
• Court: Virginia Supreme Court

Page 649

380 S.E.2d 649

238 Va. 183

TRIANGLE AUTO AUCTION, INC. v. Daniel F. CASH.

Record No. 870591.

Supreme Court of Virginia.

June 9, 1989.

David W. Mullen, Christiansburg, for appellant.

Joseph R. Johnson, Jr., David D. Embrey (Johnson & Cunningham, on brief), Lynchburg, for appellee.

Present: All the Justices.

LACY, Justice.

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 §§ 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...