Garrick v. Kelly

• Decision Date: 05 December 1986
• Docket Number: Civ. A. No. 86-0217-A.
• Citation: 649 F. Supp. 607
• Parties: Robert S. GARRICK, Plaintiff, v. Lloyd John KELLY, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

649 F. Supp. 607

Robert S. GARRICK, Plaintiff, v. Lloyd John KELLY, Jr., Defendant.

Civ. A. No. 86-0217-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 5, 1986.

Albert J. Ahern, Jr., Bailey's Crossroads, Va., for plaintiff.

Jeffrey Judd Vitt, Alexandria, Va., for defendant.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter came before the Court on plaintiff's motions: (1) for judgment notwithstanding the verdict on the malicious prosecution count of defendant's counterclaim, pursuant to Rule 50(b), Federal Rules of Civil Procedure; (2) for a new trial, pursuant to Rule 59(a), Federal Rules of Civil Procedure; and (3) for a remittitur. After considering the parties' briefs and arguments, the Court DENIES the plaintiff's motions for the reasons stated below.

FACTS

This case presents a factual scenario that would have inspired Dickens to write his finest novel. The tale begins with a failing marriage. It was the worst of times for the plaintiff Robert Garrick, a Georgetown lawyer: his wife Laurie had left the marital home in the spring of 1985 to contemplate the future of their lives together. He was upset, but they nonetheless remained on amicable terms. They saw each other frequently; she kept him informed of each change of her address; and she eventually rented a house near his. That summer, however, Laurie met the defendant Lloyd John Kelly, Jr., a Middleburg, Virginia equine artist and sculptor.¹ The two began dating.

When Garrick discovered the relationship, he hired a private investigator to spy on his wife and Kelly. Although he still professed love for his estranged wife, he believed that as her husband he should keep tabs on her. The detective uncovered, Garrick claimed, "dramatic evidence" of his wife's adultery.

Knowing that his wife's lease on her rented Georgetown house was about to expire and that he was planning to serve divorce papers upon her, on October 6, 1985 Garrick drove to her house purportedly to inquire about her new address. He saw Laurie and Kelly loading her possessions into her car and Kelly's car. Parked across the street, Garrick stealthily surveilled his wife and Kelly for several hours. Finally, the two got into their cars to drive away. "With affection beaming in one eye and calculation shining out of the other,"² Garrick pursued, artfully dodging their notice — all the way to Middleburg.

Kelly and Laurie unloaded her possessions at the artist's studio under Garrick's furtive observation. His presence, however, was eventually detected by Laurie.³ After several hours of spying in Middleburg, Garrick approached Kelly from behind as the artist was crossing the street to the police station to alert the police to Garrick's behavior. Garrick spewed sharp words at Kelly, accusing him of committing adultery with his wife. He then threw a roundhouse punch at the physically smaller Kelly, but Kelly, a black belt in judo, proved "rather a tough customer in argyment,"⁴ and Garrick "ate `umble pie with an appetite."⁵

After interviews at the police station and treatment at the local emergency room, both men went to the Magistrate of the General District Court of Loudoun County, Virginia to swear out warrants against each other for assault and battery.⁶

Kevin O'Connell was the Assistant Commonwealth's Attorney who handled both the criminal case against Kelly and that against Garrick. O'Connell never interviewed Kelly, but he did meet with Garrick and his attorney who gave him Garrick's version of the incident.

To play peacemaker between these two men, O'Connell made what he undoubtedly thought was a pickwickian offer to Kelly's attorney to recommend that the charge against Kelly be deferred for six months and then dismissed, absent any violations of the law, if Kelly would plead guilty. At that point, O'Connell had the same disposition in mind for Garrick's case.

Kelly testified at trial that he authorized his attorney Walter Jacob to accept the arrangement offered by O'Connell if and only if: (1) he would be permitted to assert his innocence; (2) the charges against Garrick would be resolved similarly or, if Garrick refused O'Connell's offer, by trial on the merits; and, (3) the disposition would not entail a conviction. Jacob testified that, when he appeared in General District Court on December 6, 1985 on Kelly's case, he had authority to tender a guilty plea on Kelly's behalf. Kelly did not appear in court.

While O'Connell informed the Court of his recommended disposition, the Court declined to require the tendering of a guilty plea and instead simply continued the case for six months, until June 5, 1986, at which time it was to be dismissed absent subsequent violations of the law. Because Kelly's case was not proceeding to trial, O'Connell decided to enter a nolle prosequi in Garrick's case.

O'Connell later learned that Garrick had no interest in peace but instead had written a virulent letter decrying Kelly as a "criminal," based upon the October 6th incident and the disposition of the criminal case. Without waiting for the six-month deferral period to expire, O'Connell then unconditionally dismissed the charges against Kelly, entering a nolle prosequi on March 6, 1986, and joined with Kelly in seeking an expungement of those charges on the ground that "the continued existence and possible dissemination of information relating to the arrest of Kelly may cause circumstances which constitute a manifest injustice to him." Kelly's record was thereafter expunged.

On February 27, 1986, Garrick instituted this diversity lawsuit against Kelly in federal court, alleging assault and battery and malicious prosecution. Kelly countersued for assault and battery and malicious prosecution.⁷ After a two-day trial, the jury found in favor of Kelly on all counts and awarded him $20,000 as compensatory damages on his assault and battery claim, and $5,000 as compensatory damages and $50,000 as punitive damages on his malicious prosecution claim.

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

To recover on a claim of malicious prosecution under Virginia law, a plaintiff must establish four elements:

that (1) the prosecution was instituted by or with the cooperation of the defendant; (2) the prosecution was terminated in a manner not unfavorable to the plaintiff; (3) the prosecution was instituted without probable cause; and (4) the defendant acted with malice.

Lee v. Southland Corp., 219 Va. 23, 244 S.E.2d 756, 758 (1978); Cramer v. Crutchfield, 496 F.Supp. 949, 953 (E.D.Va.1980), aff'd, 648 F.2d 943 (4th Cir.1981). In his Rule 50(b) motion for judgment notwithstanding the verdict, Garrick protests that the criminal case against Kelly did not terminate in Kelly's favor but rather was dismissed pursuant to a compromise reached by Kelly's lawyer and the Commonwealth's Attorney. He also argues that the evidence adduced at trial established as a matter of law that he had probable cause to institute the assault and battery prosecution against Kelly.

In some circumstances, courts have ruled that "a voluntary compromise of a criminal prosecution, by the procurement or with the consent of the accused, in itself defeats a recovery in a subsequent action for malicious prosecution based upon the criminal proceeding." Orndorff v. Bond, 185 Va. 497, 39 S.E.2d 352, 354 (1946). Where the dismissal is not shown to have been the result of a valid compromise or settlement, however, no bar to recovery applies. Robertson v. Bell, 57 Wash.2d 505, 358 P.2d 149, 153 (1961). And where the evidence on that point conflicts, the jury and not the Court must decide it.⁸See, e.g., Chatman v. Pizitz, Inc., 429 So.2d 969, 972 (Ala.1983) ("Where the parties join issue by way of pleadings and proof with respect to the defense of compromise, that issue is to be rendered by the jury like any other triable issue of fact."); Survis v. A.Y. McDonald Manufacturing Co., 224 Minn. 479, 28 N.W.2d 720, 727 (1947) (Where there was "no conclusive evidence that plaintiff's attorney induced or caused the dismissal ... the trial court could do no more than submit this issue to the jury."). Accord, Ferrell v. Livingston, 344 Ill.App. 488, 101 N.E.2d 599 (1951); Jennings v. Clearwater Manufacturing Co., 171 S.C. 498, 172 S.E. 870 (1934). In short, the defense of compromise is for the jury unless it is uncontested as a factual matter. Cf. Tucker v. Duncan, 499 F.2d 963 (4th Cir.1974) (The record indicated "without contradiction" that the underlying charges had been dismissed by way of nolle prosequi procured by the plaintiff's lawyer.); Orndorff v. Bond, supra (The evidence was "without contradiction" and "conclusively disclosed that the plaintiff voluntarily compromised and settled" the misdemeanor warrant.).

Because of conflicts in the evidence concerning the termination of the criminal case against Kelly, the Court submitted the issue to the jury.

The question to be resolved in deciding a motion for judgment notwithstanding the verdict is whether there is evidence upon which a jury can properly find a verdict. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). The principles governing decision of the motion have been stated as follows:

In determining whether the evidence is sufficient the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.

Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221, 224 (4th Cir.1985) (quoting 9 Wright & Miller, Federal Practice and Procedure § 2524 at 543-45 (1971)).

The jury's determination that Kelly won a not unfavorable disposition is not contrary to the weight of the evidence. On at least four grounds, the evidence entitled the jury to find that Kelly's...