Pote v. Jarrell
| Decision Date | 17 December 1991 |
| Docket Number | No. 19945,19945 |
| Citation | 412 S.E.2d 770,186 W.Va. 369 |
| Court | West Virginia Supreme Court |
| Parties | Kenneth POTE Plaintiff Below, Appellee, v. Richard JARRELL and Hollis Jarrell, Defendants Below, Appellants. INTERSTATE DRILLING, INC., Plaintiff Below, Appellee, v. Richard JARRELL and Hollis JARRELL, Defendants Below, Appellants. |
Syllabus by the Court
1. " Syl. pt. 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961).
2. Syl. pt. 2, Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985).
3. Syl. pt. 8 Truman v. Fidelity & Casualty Company of New York.
4. Syl. pt. 1, Pinnacle Mining v. Duncan Aircraft Sales, 182 W.Va. 307, 387 S.E.2d 542 (1989).
James C. West, Jr., West & Jones, Clarksburg, for appellants.
John Lewis Marks, Jr., Clarksburg, for appellees.
The appellants, Richard Jarrell and Hollis Jarrell, appeal from a jury verdict entered in the Circuit Court of Lewis County, awarding damages to the appellee, Kenneth Pote, and to the other appellee, Interstate Drilling, Inc. Appellee Pote filed a civil action against the appellants primarily on the theories of malicious prosecution and abuse of process, which was later consolidated with a related case filed against the appellants by appellee, Interstate Drilling. The appellants' principal argument on appeal is that the trial court erred in denying their motions for a directed verdict on the grounds that they relied on the advice of counsel in initiating criminal charges against appellee Pote and that they did not willfully or maliciously misuse lawfully issued process. This Court is of the opinion that there is no reversible error, and accordingly, the judgment of the circuit court is affirmed.
Appellee Pote filed a civil action against appellants Richard and Hollis Jarrell based on the theories of malicious prosecution, abuse of process, intentional infliction of emotional distress, extortion, defamation of character, negligent failure to withdraw the warrant and false arrest. The incident which ultimately gave rise to Pote's causes of action occurred in October of 1987. The following facts relating to that incident were stated by the parties in their briefs. Because of the nature of this case, it is necessary to recite the facts at some length.
Pote, in his capacity as manager of Interstate Drilling, Inc., 1 arranged to have the appellants, Richard and Hollis Jarrell, who were partners in an independent contracting business known as Rick's Dozer Service, provide a TD-15 bulldozer on Interstate Drilling's site to rework a road to a well location and to assist in moving pipe and equipment to the well site. The appellants provided Pote with a bulldozer and a bulldozer operator, Doyle James.
Mr. James operated the bulldozer on the day of the incident for approximately three to four hours. Upon completing his work, Mr. James drove the bulldozer to the bottom of the hill near the well location. Mr. James testified that he set the brakes, lowered the blade, closed the panel covering the gauges, inserted a lock 2 and left for the day. Pote and some other workers, however, continued to work on the well in an effort to remove a "packer."
At approximately 5:30 p.m., the well had a sudden release of pressure which caused oil and water to surge to the top of the well rig and spill onto the ground. Pote and the other workers attempted to control the flow with shovels. When their attempts to control the flow were unsuccessful, two of the workers, John Clowser and Clay Arbogast suggested to Pote that they go to the bottom of the hill to get the bulldozer and use it to dig a ditch to contain the flow. Mr. Arbogast assured Pote that he could operate the bulldozer. Pote, who asserted he was faced with an emergency situation, authorized Mr. Arbogast and Mr. Clowser to use the bulldozer. With the use of the bulldozer, they were successful in digging a ditch to contain the flow and in keeping it from going over the hill onto the landowner's property.
When Mr. James arrived at the well site a few days later, he noticed that the bulldozer had been moved. When Mr. James drove the bulldozer to the well site, Pote advised Mr. James that they had used the bulldozer to try to contain the oil spill. Pote told Mr. James that he would call Richard Jarrell to explain the incident to him. 3 When Mr. James later noticed some problems with the operation of the bulldozer and realized that Pote had not informed Richard Jarrell that he used the bulldozer, Mr. James elected to tell Richard Jarrell what he had learned.
Pote and Richard Jarrell eventually had a heated confrontation over Pote's use of the bulldozer without authorization. After their argument, however, Pote telephoned Richard Jarrell to apologize and assured him that Interstate Drilling would pay for any damage done to the bulldozer.
Richard Jarrell consulted with his attorney, Bonnie Kratovil, to determine his rights with regard to the damage done to the bulldozer. Ms. Kratovil told Richard Jarrell that there might be criminal ramifications and recommended that he consult with the prosecuting attorney.
Richard Jarrell followed the recommendation of his attorney and went to the office of the magistrate to inquire about a warrant for Pote's arrest. Upon hearing the facts involved in the incident, the magistrate informed Richard Jarrell that he believed it was a civil matter. He did not issue a warrant. Richard Jarrell then went to the office of the prosecuting attorney, Harold Bailey. Mr. Bailey assisted Richard Jarrell in drafting the language to be included in the complaint to be filed for the warrant but did not advise him as to whether criminal charges should be brought. Thereafter, Richard Jarrell returned to the magistrate's office and, based upon the information provided to him by Mr. Bailey, Richard Jarrell filed a complaint for a warrant charging the appellee with the offense of feloniously and willfully injuring and tampering with a vehicle in violation of W.Va.Code, 17A-8-7(b) [1989]. 4
Pote received an invoice from appellants Richard and Hollis Jarrell requesting payment in the sum of $3,560.21 for damages to the bulldozer and for lost time and income. Pote called Richard Jarrell to obtain documentation to support the invoice but spoke with Hollis Jarrell instead. Pote then met with Hollis Jarrell and advised him that he would only reimburse him for the actual damage to the bulldozer and not for the lost time and income. Pote gave Hollis Jarrell a check for $844.27. Hollis Jarrell advised Pote that if he did not pay the entire amount of the invoice, he would have him arrested. After later discussing the matter with the president of Interstate Drilling, Pote mailed the appellants a check covering the amount of lost income and time.
The magistrate sent Pote a summons to appear which was received by Pote the day after he mailed the check to the appellants. Pote did not appear and a warrant was then issued for his arrest. Pote was arrested, photographed and fingerprinted, and then released on his own recognizance.
Following a preliminary hearing, Pote was bound over to the grand jury. Pote's case was not presented to the grand jury at the next two terms of court, and he filed a motion to dismiss the warrant. At a hearing on that motion, the circuit court instructed the prosecuting attorney that the court would dismiss the warrant if he failed to present the case at the next term of the grand jury. The case was then presented to the grand jury and Pote was indicted. At trial, the circuit court directed a verdict of acquittal on the felony charge in favor of Pote and the case was submitted to the jury on the misdemeanor offense. Within minutes, the jury found that Pote was not guilty.
Pote filed a civil action against appellants Richard and Hollis Jarrell based on the theories of malicious prosecution, abuse of process, intentional infliction of emotional distress, extortion, defamation of character, negligent failure to withdraw the warrant, and false arrest, and to recover the costs he incurred in defending himself in the criminal proceedings. Pote sought $25,000 in compensatory damages, $50,000 in general damages and $50,000 in punitive damages. Interstate Drilling also filed an action against the appellants contending that...
To continue reading
Request your trial
-
Erickson v. Erickson
...a referral could be found to be a proximate cause of the client's damages. 7 This Court notes that in Syllabus Point 2 of Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991) (per curiam), the Supreme Court of Appeals "`"Generally, abuse of process consists of the willful or malicious misu......
-
Ballock v. Costlow, CIVIL ACTION NO. 1:17CV52
...from a malicious prosecution claim when there was no evidence that an officer misled or pressured the prosecutor); Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770, 775 (1991) (explaining that acting on advice of counsel can be an absolute defense for malicious prosecution when prosecution wa......
-
Banker v. Banker
...the plaintiff in his response to the petition for appeal. We will address only the claims briefed by the defendant. Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991).2 The special commissioner found:"Plaintiff has acknowledged his relationship with Judy Gibson. This was corroborated by ......
-
Rhodes v. Smithers
...that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770, 774 (1991). On each element, plaintiffs must overcome the "presumption that every prosecution for a crime is founded upon proba......