Baldau v. Jonkers

• Decision Date: 10 March 2011
• Docket Number: No. 35650.,35650.
• Citation: 229 W.Va. 1,725 S.E.2d 170
• Court: West Virginia Supreme Court
• Parties: Todd BALDAU, Plaintiff below, Appellee v. Herbert JONKERS, Louis B. Athey, and Eugene Capriotti, Defendants below, Appellants.

229 W.Va. 1

725 S.E.2d 170

Todd BALDAU, Plaintiff below, Appellee

v.Herbert JONKERS, Louis B. Athey, and Eugene Capriotti, Defendants below, Appellants.

No. 35650.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 16, 2011.

Decided March 10, 2011.

Syllabus by the Court

1. “The right to petition the government found in Section 16 of Article III of the West Virginia Constitution is comparable to that found in the First Amendment to the United States Constitution. It does not provide an absolute privilege for intentional and reckless falsehoods, but the right is protected by the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). To the extent that Webb v. Fury, 167 W.Va. 434, 282 S.E.2d 28 (1981), states to the contrary, it is overruled.” Syllabus Point 1, Harris v. Adkins, 189 W.Va. 465, 432 S.E.2d 549 (1993).

2. “A motion to amend a pleading is addressed to the sound discretion of the trial court and such discretion will not be disturbed on appeal unless there is a showing of abuse of discretion.” Syllabus Point 1, Nellas v. Loucas, 156 W.Va. 77, 191 S.E.2d 160 (1972).

3. “ ‘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).” Syllabus Point 1, Preiser v. MacQueen, 177 W.Va. 273, 352 S.E.2d 22 (1985).

4. “Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. “In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.” Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

6. “There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Syllabus Point 3, Sally–Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

James P. Campbell, Esq., J. Michael Cassell, Esq., Campbell Flannery, P.C., Charles Town, WV, for Appellants.

David M. Hammer, Esq., Robert J. Schiavoni, Esq., Hammer, Ferretti & Schiavoni, Martinsburg, WV, for Appellee.

PER CURIAM:

Appellants Herbert Jonkers, Louis B. Athey and Eugene Capriotti (hereinafter “defendants”) are real estate developers who filed a petition to remove plaintiff/appellee Todd Baldau (hereinafter “Mr. Baldau”) from the Jefferson County Planning Commission, alleging that he committed multiple acts of official misconduct and malfeasance while serving on the commission. A three judge panel appointed by this Court conducted a trial on these allegations and concluded that “[t]here is not a scintilla of evidence in this case to support any of the allegations within the Petition that the Respondent (Mr. Baldau), in the performance of any of his duties ... violated the law or his oath of office.” The defendants did not appeal the three judge panel's ruling.

After this ruling, Mr. Baldau filed a malicious prosecution claim against the defendants, which resulted in a jury awarding him multiple damage awards, including $15,000 in punitive damages against each defendant, for a total punitive damage award of $45,000.

In this appeal of the jury award, the defendants assert that the trial court erred by: (1) failing to grant the defendants' cross motion for summary judgment which asserted that they were entitled to immunity pursuant to the Noerr–Pennington doctrine; (2) denying the defendants' motion to amend to add Noerr–Pennington immunity and advice of counsel defenses; (3) granting Mr. Baldau's motion for partial summary judgment based upon the ruling of the three judge panel; and (4) alleging that all of the damage awards were erroneous based on prejudicial rulings made by the trial court.

After thorough review of the briefs, the legal authority cited and the record presented for consideration, we affirm the circuit court's judgment order.

I.Facts & Background

In 2005, plaintiff Todd Baldau volunteered to serve on the nine-member Jefferson County Planning Commission (hereinafter “planning commission”). At that time, Mr. Baldau was living in Jefferson County with his wife and two daughters and commuted to Washington D.C. where he worked as an administrator in the United States Department of Justice and Federal Bureau of Prisons. He received no compensation for serving on the planning commission and testified that he volunteered because he wanted to get involved in the community.

The three defendants are real estate developers in Jefferson County who filed a removal petition against Mr. Baldau pursuant to W.Va.Code § 6–6–7 [1985], ¹ alleging that he committed multiple acts of official misconduct and malfeasance. The main allegation against Mr. Baldau was that he voted to deny subdivision applications that complied with Jefferson County zoning ordinances and that he “publicly threatened” a fellow planning commissioner “with political recriminations” if the commissioner voted for a zoning ordinance that Mr. Baldau was against. The removal petition also asserted that Mr. Baldaudemanded that applications filed by the defendants comply with terms which were not required by county zoning ordinances.

The Circuit Court of Jefferson County dismissed this petition without prejudice on October 5, 2006.² The defendants subsequently filed a second removal petition against Mr. Baldau, again alleging that he committed multiple acts of official misconduct and malfeasance. While this petition included 80 signatures, the allegations were verified solely by the three defendants.³

In accordance with the procedure set forth in W.Va.Code § 6–6–7 [1985], this Court appointed a three judge panel ⁴ to preside over the removal petition. The three judge panel heard evidence from both sides on January 30, 2007. By order entered on August 30, 2007, the three judge panel emphatically concluded that the defendants' removal petition was unsupported by any evidence. The three judge panel stated:

There is not a scintilla of evidence in this case to support any of the allegations within the Petition that the Respondent, in the performance of any of his duties as a member of the JCPC ... violated the law or his oath of office.

Accordingly, the Court ... unanimously concludes that there is no clear and convincing evidence at all in this case which supports, to any degree, any factual or legal conclusion that the Respondent has, in any manner, in the performance of any of his duties as a member of the Jefferson County Planning Commission, committed multiple acts of official misconduct, engaged in malfeasance in office, is incompetent or has neglected any of his official duties. To the contrary, the Respondent clearly appears to be an informed, smart and conscientious, unpaid citizen member of the Jefferson County Planning Commission.

The three judge panel also stated that Mr. Baldau “obviously acted in good faith, and within the law, as he exercised his votes,” and that he voted with the majority of the nine-member commission in most instances. The panel concluded that there was no “reasonable, logical or rational explanation” presented by the defendants explaining why they singled out Mr. Baldau for removal from the nine-member commission. The defendants did not appeal the three judge panel's order.

After this ruling, Mr. Baldau filed a malicious prosecution claim against the three defendants, alleging that they brought the removal action against him “with actual malice and without reasonable or probable cause.”

On October 1, 2008, Mr. Baldau filed a motion for partial summary judgment on the issue of liability, arguing that the three judge panel's order established that the defendants did not have probable cause to pursue the removal action. The defendants responded by arguing that collateral estoppel did not apply and the motion for summary judgment should be denied. They also filed an untimely ⁵ cross-motion for summary judgment asserting for the first time that they were immune from liability for malicious prosecution pursuant to the Noerr–Pennington doctrine and raising the defense of good faith reliance upon the advice of counsel. On November 19, 2008, the circuit court granted Mr. Baldau's motion for partial summary judgment, concluding that the three judge panel's order established that “the defendantsdid not have probable cause to file removal actions against Mr. Baldau and given the want of probable cause, malice is inferred.”

The jury trial on Mr. Baldau's damages began on April 23, 2009. The main issue during the trial was whether the defendants acted with actual malice toward Mr. Baldau when they filed the removal petition against him. Mr. Baldau and his wife both testified and described the psychological and financial strain the removal petition put on their family. Mr. Baldau testified that this strain caused him to seek psychological counseling. Greg Corliss, the commissioner...