PRESENT: All the Justices
CANDY EUBANK, ET AL. OPINION BY v. Record No. 201118 JUSTICE STEPHEN R. McCULLOUGH August 5, 2021 SUE K. THOMAS, ET AL.
FROM THE CIRCUIT COURT OF MATHEWS COUNTY William H. Shaw, III, Judge Designate
Candy and Mark Eubank filed a complaint against the County Administrator of Mathews
County and two employees of the Mathews County Planning and Zoning Department, alleging
malicious prosecution and abuse of process. The circuit court granted the County’s demurrer
and dismissed the complaint. The Eubanks appeal from this dismissal. For the reasons noted
below, we reverse the dismissal of the malicious prosecution claim but we affirm the circuit
court’s dismissal of the abuse of process claim.
BACKGROUND
I. THE ZONING ENFORCEMENT PROCEEDINGS.
The Eubanks own a house in Mathews County. The house was built in 1949. The
Eubanks became the owners through a deed of gift in 2014. In 2015, they received a “violation
notice and correction order” from Mathews County. The notice stated that the Eubanks were in
violation of two zoning ordinances. First, the notice stated that an unpermitted “four (4) foot
expansion of the non-conforming structure has occurred,” in violation of § 20.1 of the zoning
ordinance. That ordinance provides that “[i]t shall be unlawful to use land or structures or to
alter or erect structures until a zoning permit (clearance) is obtained from the Zoning
Administrator.” Second, the notice stated that the Eubanks had improperly expanded or enlarged a nonconforming use or lot, in violation of § 16.4.4 of the zoning ordinance. That ordinance
prohibits expansion or enlargement of a structure into certain defined buffer areas.
The notice informed the Eubanks that they could remedy the alleged violations by taking
corrective action. Possible corrective action included, among other things, providing the County
with “plats of [their] property prepared by a licensed land surveyor . . . that demonstrate that the
original footprint of the house has not been expanded” and that there has been no encroachment
of the buffer area. The notice also detailed the procedures for appealing the violations. It also
conspicuously stated that “failure to correct the violations or appeal this decision within the
specified time period may result in charges being filed against you in General District Court . . .
or may result in other legal actions initiated by this office against you.”
In response, the Eubanks exchanged emails with County officials disputing the existence
of any violation. The Eubanks also provided a letter – not a survey – from a surveyor licensed in
Virginia stating that the footprint of the house is the same as the original footprint from the 1966
survey. The letter states that the “[n]orthern side of [the Eubanks’] home appears to be
consistent with” the original survey from 1966. (emphasis added).
Several months later, the County initiated criminal proceedings against the Eubanks.
Two of the warrants alleged that, between 2011 and 2012, the plaintiffs added a four-foot
expansion of their residence and that this expansion encroached on the neighboring property.
Two additional warrants alleged that the plaintiffs failed to obtain permits for the alleged
four-foot expansion. All the warrants were either dismissed or “nolle prossed.”
II. THE EUBANKS FILE A COMPLAINT ALLEGING MALICIOUS PROSECUTION AND ABUSE OF PROCESS.
Following the successful resolution of the criminal charges, the Eubanks filed a two-
count complaint against the County Administrator of Mathews County and two employees of the
2 Mathews County Planning and Zoning Department (collectively, the “County Employees”),
alleging malicious prosecution and abuse of process. The complaint was amended multiple
times. The complaint alleged that Mathews County, and one of the individual defendants in
particular, was interested in acquiring property to increase public access to the water in the
specific area where the Eubanks property is located. To accomplish this goal, the County
Employees began to research zoning violations to use them as a pretext “to force [the Eubanks]
to tear down their home.” This would reduce the property’s value, and then, with a lowered
value, Mathews County could acquire the land at reduced cost via eminent domain.
The notice and criminal summons presupposed that there was an unpermitted expansion
of the house in 2011 or 2012. The Eubanks claim that this “alleged expansion never existed and
[the County Employees] knew or should have known [that] it did not.” According to the
Eubanks, the house’s footprint is the same as it was in 1966. Further, the alleged encroachment
originated from “a sketch drawing” by the Commissioner of the Revenue, who is not a licensed
surveyor. According to the Eubanks, an employee of the County’s Planning and Zoning
Department modified this sketch drawing to increase the alleged encroachment. The Eubanks
allege that the letter from the licensed surveyor, along with the original 1966 survey, provided
“more than enough reasonable evidence” to establish that the notice of violation was without
foundation. Nevertheless, the Eubanks allege, the County Employees presented “knowingly
inaccurate” evidence to the magistrate to obtain criminal charges against the Eubanks.
In response, the County Employees filed a demurrer and a plea in bar. The County
Employees argued that the complaint should be dismissed because, by failing to timely appeal
the decision of the zoning violation, the decision of the zoning administrator became a “thing
decided.” The County Employees also alleged that the allegations of the complaint were legally
3 insufficient to support a claim for malicious prosecution or for abuse of process. The circuit
court granted the County Employees’ demurrer and dismissed the case with prejudice.
We awarded the Eubanks an appeal. The Eubanks challenge the applicability of the
“thing decided” doctrine to their claims, and they further argue that the allegations in the
complaint are sufficient to survive demurrer.
ANALYSIS
On appeal, we review a circuit court’s judgment sustaining a demurrer de novo.
Glazebrook v. Board of Supervisors, 266 Va. 550, 554 (2003). We consider as true the facts
alleged in the motion for judgment and the reasonable factual inferences that can be drawn from
the facts alleged. McDermott v. Reynolds, 260 Va. 98, 100 (2000). We do not evaluate the
merits of the allegations, but only whether the factual allegations sufficiently plead a cause of
action. Riverview Farm Assocs. Va. Gen. P’ship v. Board of Supervisors, 259 Va. 419, 427
(2000).
I. THE “THING DECIDED” DOCTRINE DOES NOT APPLY TO A CLAIM OF MALICIOUS PROSECUTION OR ABUSE OF PROCESS.
“In the land use context, a landowner may be precluded from making a direct judicial
attack on a zoning decision if the landowner has failed to exhaust adequate and available
administrative remedies before proceeding with a court challenge.” Vulcan Materials Co. v.
Board of Supervisors, 248 Va. 18, 23 (1994) (quotation marks and citation omitted). A person
aggrieved by a decision of the zoning administrator has the right to appeal to the board of zoning
appeals. See Code § 15.2-2286(A)(4) and Code § 15.2-2311. “If this mandatory appeal is not
timely filed, the administrative remedy has not been exhausted and the zoning administrator’s
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PRESENT: All the Justices
CANDY EUBANK, ET AL. OPINION BY v. Record No. 201118 JUSTICE STEPHEN R. McCULLOUGH August 5, 2021 SUE K. THOMAS, ET AL.
FROM THE CIRCUIT COURT OF MATHEWS COUNTY William H. Shaw, III, Judge Designate
Candy and Mark Eubank filed a complaint against the County Administrator of Mathews
County and two employees of the Mathews County Planning and Zoning Department, alleging
malicious prosecution and abuse of process. The circuit court granted the County’s demurrer
and dismissed the complaint. The Eubanks appeal from this dismissal. For the reasons noted
below, we reverse the dismissal of the malicious prosecution claim but we affirm the circuit
court’s dismissal of the abuse of process claim.
BACKGROUND
I. THE ZONING ENFORCEMENT PROCEEDINGS.
The Eubanks own a house in Mathews County. The house was built in 1949. The
Eubanks became the owners through a deed of gift in 2014. In 2015, they received a “violation
notice and correction order” from Mathews County. The notice stated that the Eubanks were in
violation of two zoning ordinances. First, the notice stated that an unpermitted “four (4) foot
expansion of the non-conforming structure has occurred,” in violation of § 20.1 of the zoning
ordinance. That ordinance provides that “[i]t shall be unlawful to use land or structures or to
alter or erect structures until a zoning permit (clearance) is obtained from the Zoning
Administrator.” Second, the notice stated that the Eubanks had improperly expanded or enlarged a nonconforming use or lot, in violation of § 16.4.4 of the zoning ordinance. That ordinance
prohibits expansion or enlargement of a structure into certain defined buffer areas.
The notice informed the Eubanks that they could remedy the alleged violations by taking
corrective action. Possible corrective action included, among other things, providing the County
with “plats of [their] property prepared by a licensed land surveyor . . . that demonstrate that the
original footprint of the house has not been expanded” and that there has been no encroachment
of the buffer area. The notice also detailed the procedures for appealing the violations. It also
conspicuously stated that “failure to correct the violations or appeal this decision within the
specified time period may result in charges being filed against you in General District Court . . .
or may result in other legal actions initiated by this office against you.”
In response, the Eubanks exchanged emails with County officials disputing the existence
of any violation. The Eubanks also provided a letter – not a survey – from a surveyor licensed in
Virginia stating that the footprint of the house is the same as the original footprint from the 1966
survey. The letter states that the “[n]orthern side of [the Eubanks’] home appears to be
consistent with” the original survey from 1966. (emphasis added).
Several months later, the County initiated criminal proceedings against the Eubanks.
Two of the warrants alleged that, between 2011 and 2012, the plaintiffs added a four-foot
expansion of their residence and that this expansion encroached on the neighboring property.
Two additional warrants alleged that the plaintiffs failed to obtain permits for the alleged
four-foot expansion. All the warrants were either dismissed or “nolle prossed.”
II. THE EUBANKS FILE A COMPLAINT ALLEGING MALICIOUS PROSECUTION AND ABUSE OF PROCESS.
Following the successful resolution of the criminal charges, the Eubanks filed a two-
count complaint against the County Administrator of Mathews County and two employees of the
2 Mathews County Planning and Zoning Department (collectively, the “County Employees”),
alleging malicious prosecution and abuse of process. The complaint was amended multiple
times. The complaint alleged that Mathews County, and one of the individual defendants in
particular, was interested in acquiring property to increase public access to the water in the
specific area where the Eubanks property is located. To accomplish this goal, the County
Employees began to research zoning violations to use them as a pretext “to force [the Eubanks]
to tear down their home.” This would reduce the property’s value, and then, with a lowered
value, Mathews County could acquire the land at reduced cost via eminent domain.
The notice and criminal summons presupposed that there was an unpermitted expansion
of the house in 2011 or 2012. The Eubanks claim that this “alleged expansion never existed and
[the County Employees] knew or should have known [that] it did not.” According to the
Eubanks, the house’s footprint is the same as it was in 1966. Further, the alleged encroachment
originated from “a sketch drawing” by the Commissioner of the Revenue, who is not a licensed
surveyor. According to the Eubanks, an employee of the County’s Planning and Zoning
Department modified this sketch drawing to increase the alleged encroachment. The Eubanks
allege that the letter from the licensed surveyor, along with the original 1966 survey, provided
“more than enough reasonable evidence” to establish that the notice of violation was without
foundation. Nevertheless, the Eubanks allege, the County Employees presented “knowingly
inaccurate” evidence to the magistrate to obtain criminal charges against the Eubanks.
In response, the County Employees filed a demurrer and a plea in bar. The County
Employees argued that the complaint should be dismissed because, by failing to timely appeal
the decision of the zoning violation, the decision of the zoning administrator became a “thing
decided.” The County Employees also alleged that the allegations of the complaint were legally
3 insufficient to support a claim for malicious prosecution or for abuse of process. The circuit
court granted the County Employees’ demurrer and dismissed the case with prejudice.
We awarded the Eubanks an appeal. The Eubanks challenge the applicability of the
“thing decided” doctrine to their claims, and they further argue that the allegations in the
complaint are sufficient to survive demurrer.
ANALYSIS
On appeal, we review a circuit court’s judgment sustaining a demurrer de novo.
Glazebrook v. Board of Supervisors, 266 Va. 550, 554 (2003). We consider as true the facts
alleged in the motion for judgment and the reasonable factual inferences that can be drawn from
the facts alleged. McDermott v. Reynolds, 260 Va. 98, 100 (2000). We do not evaluate the
merits of the allegations, but only whether the factual allegations sufficiently plead a cause of
action. Riverview Farm Assocs. Va. Gen. P’ship v. Board of Supervisors, 259 Va. 419, 427
(2000).
I. THE “THING DECIDED” DOCTRINE DOES NOT APPLY TO A CLAIM OF MALICIOUS PROSECUTION OR ABUSE OF PROCESS.
“In the land use context, a landowner may be precluded from making a direct judicial
attack on a zoning decision if the landowner has failed to exhaust adequate and available
administrative remedies before proceeding with a court challenge.” Vulcan Materials Co. v.
Board of Supervisors, 248 Va. 18, 23 (1994) (quotation marks and citation omitted). A person
aggrieved by a decision of the zoning administrator has the right to appeal to the board of zoning
appeals. See Code § 15.2-2286(A)(4) and Code § 15.2-2311. “If this mandatory appeal is not
timely filed, the administrative remedy has not been exhausted and the zoning administrator’s
decision becomes a ‘thing decided’ not subject to court challenge.” Lilly v. Caroline County,
259 Va. 291, 296 (2000) (citation omitted). The “thing decided” doctrine ensures that zoning
4 decisions are appealed through the proper channels. Dick Kelly Enters., Va. P’ship, No. 11 v.
City of Norfolk, 243 Va. 373, 378 (1992) (“[E]xhaustion of administrative remedies
where zoning ordinances are involved is essential before a judicial attack may be mounted
against the interpretation of such ordinances.”). Requiring timely exhaustion of administrative
remedies also protects the finality of zoning decisions.
Here, the Eubanks are not pursuing an untimely challenge to a land use decision. Instead,
they are alleging that the County Employees committed intentional torts against them. The
“thing decided” doctrine simply does not apply.1
II. THE EUBANKS’ ALLEGATIONS OF MALICIOUS PROSECUTION ARE SUFFICIENT TO WITHSTAND DEMURRER.
“Malicious prosecution actions arising from criminal proceedings are not favored in
Virginia and the requirements for maintaining such actions are more stringent than those applied
to other tort cases.” O’Connor v. Tice, 281 Va. 1, 7 (2011). See also Dill v. Kroger Ltd. P’ship,
Record No. 200823, 300 Va. ___, ___, slip op. at 8 (2021) (citing Lewis v. Kei, 281 Va. 715, 722
(2011) (same)). Such actions are disfavored because criminal prosecutions are “essential to the
maintenance of an orderly society,” and persons bringing such prosecutions should not be
deterred by the fear of unjustified reprisals in the form of ensuing civil litigation. Reilly v.
Shepherd, 273 Va. 728, 733 (2007); see Dill, 300 Va. at ___, slip op. at 8 (citing Lewis, 281 Va.
at 722) (same).
1 Moreover, the criminal charges against the Eubanks stemming from the alleged zoning violations were dropped, so there is no land use decision to attack.
5 A plaintiff alleging malicious prosecution must plead and prove by a preponderance of
the evidence that the prosecution was (1) malicious, 2 (2) instituted by or with the cooperation of
the defendant(s), (3) without probable cause, and (4) terminated in a manner not unfavorable to
the plaintiff. O’Connor, 281 Va. at 7; Dill, 300 Va. at ___, slip op. at 8 (citing Lewis, 281 Va. at
722) (same).
The adequacy of the complaint with respect to elements (1), (2), and (4) is not in dispute.
The Eubanks allege that the County Employees engaged in a scheme to distort the nature of the
encroachment. The encroachment, although nonconforming, was not actionable at law because
it had existed since 1966. See Code § 15.2-2307(D). In addition, the Eubanks allege that the
house was not expanded in 2011 or 2012, that it occupies the same footprint now as it did in
1966, and, therefore, allegations of a zoning violation based on additional construction in 2011
or 2012 were without a factual basis. Furthermore, the Eubanks allege that the County
Employees, who wished to increase public access to the water, alleged groundless zoning
violations in order to force the Eubanks to tear down the house so that the property might be
acquired via eminent domain at a reduced price. Finally, the criminal proceeding was terminated
in a manner not unfavorable to the Eubanks.
The briefs focus on whether the County Employees acted with probable cause in
obtaining criminal warrants against the Eubanks. “[P]robable cause is defined as knowledge of
such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and
circumstances, that the plaintiff is guilty of the crime of which he is suspected.” O’Connor, 281
2 “In the context of a malicious prosecution action, malice is defined as any controlling motive other than a good faith desire to further the ends of justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty are punished.” Hudson v. Lanier, 255 Va. 330, 333 (1998) (emphasis omitted); see also Dill, 300 Va. at ___, slip op. at 10 (same).
6 Va. at 9; see also Dill, 300 Va. at ___, slip op. at 9 (citing Lewis, 281 Va. at 723). “The test [of
probable cause] is whether the facts and circumstances known, or made known, to the prosecutor
are sufficient to justify a prudent and reasonable man in the belief that an accused is guilty of the
crime charged.” Giant of Va., Inc. v. Pigg, 207 Va. 679, 684 (1967). “Only where the facts
relating to probable cause are not in dispute in a malicious prosecution action does the issue
become a question of law for the court; and when such facts are in dispute, the issue is one of
fact to be resolved by the triers of fact.” Lee v. Southland Corp., 219 Va. 23, 27 (1978); see also
Dill, 300 Va. at ___, slip op. at 9 (citing Giant of Va., 207 Va. at 684 and O’Connor, 281 Va. at
9).
The County Employees point to the fact that the Eubanks did not remedy the zoning
violation in the manner contemplated by the notice. The notice allowed the Eubanks to remedy
the violation by, among other things, providing a “survey” from a surveyor licensed in Virginia.
Instead, the Eubanks supplied a letter – not a proper survey – from a Virginia licensed surveyor.
Therefore, the County Employees reason, they had probable cause to advance the case for
criminal prosecution. The gravamen of the Eubanks’ allegations is that there never was any real
probable cause because the encroachment had existed since 1966 and was, therefore, not
actionable. Additionally, the purported unpermitted expansion of the house in 2011 and 2012
did not happen. Moreover, the Eubanks allege, the County Employees knew all of this, or should
have known it, based on the surveyor’s letter and the original survey, but they nevertheless
proceeded to initiate criminal charges. We conclude that the allegations of the complaint with
respect to probable cause were for the factfinder to resolve. Accordingly, we reverse the circuit
court’s dismissal of the malicious prosecution claim.
7 III. THE EUBANKS’ CLAIM OF ABUSE OF PROCESS FAILS AS A MATTER OF LAW BECAUSE THEY DO NOT ALLEGE THAT ANY PARTICULAR PROCESS WAS ABUSED.
The Eubanks also allege that the County Employees are liable for abuse of process. We
have described malicious prosecution and abuse of process as “kindred” causes of action.
Donohoe Constr. Co., Inc. v. Mount Vernon Assocs., 235 Va. 531, 540 (1988). The elements,
however, are different. Id. Unlike the malicious prosecution tort, the abuse of process tort does
not require the plaintiff “to allege or prove that the process was maliciously [issued].” Id.
(quoting Glidewell v. Murray-Lacy & Co., 124 Va. 563, 571 (1919)). Also unlike the tort of
malicious prosecution, an action for abuse of process “usually presupposes that the . . . process
was proper in its inception.” Glidewell, 124 Va. at 569 (referencing Bradshaw v. Frazier, 85
N.W. 752 (Iowa 1901)).
Abuse of process involves
the misuse of a legal process to accomplish some purpose not warranted or commanded by the writ, a malicious perversion of a regularly issued civil or criminal process for a purpose and to obtain a result not lawfully warranted or properly attainable thereby. It is the misuse of the power of the court, an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. Abuse of process, as distinguished from that of malicious prosecution, involves the malicious misuse or perversion of the process, after its issuance, for an end not lawfully warranted by it.
Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation § 39:25 (2d ed. 2021). “Abuse of
process involves the wrongful use of process after it has been issued.” Triangle Auto Auction,
Inc. v. Cash, 238 Va. 183, 184 (1989) (emphases added). “A legitimate use of process to its
authorized conclusion, even when carried out with bad intention, is not a malicious abuse of that
process.” Donohoe Constr. Co., 235 Va. at 540.
8 To prevail in a cause of action for abuse of process, a plaintiff must plead and prove:
“(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.” Id. at 539.
The term “process” in this context means specific legal procedures enforced by judicial
authority. As the Supreme Court of Maine explained, “[t]he filing of a lawsuit qualifies as a
regular use of process and cannot constitute abuse of process, even if the filing was influenced
by an ulterior motive . . . . Instead, abuse of process claims arise when litigants misuse individual
legal procedures, such as discovery, subpoenas, and attachment, after a lawsuit has been filed.”
Advanced Constr. Corp. v. Pilecki, 901 A.2d 189, 197 (Me. 2006) (citing Tanguay v. Asen, 722
A.2d 49, 50 (Me. 1998)).
For example, in Ely v. Whitlock, 238 Va. 670, 676 (1989), this Court affirmed a circuit
court decision overruling a demurrer to an abuse of process claim. There, plaintiff filed an ethics
complaint against an attorney. The complaint turned out to be unfounded. Had the attorney
simply allowed “the appropriate disciplinary authorities to investigate and prosecute the
complaint,” there would have been no cause of action for abuse of process. Id. The attorney did
not simply stop there, however. After filing the complaint, the attorney who had lodged the
ethics complaint took depositions to support her complaint. We concluded that taking
depositions after filing the complaint satisfied the second prong of an abuse of process claim and
was sufficient to withstand a demurrer. Id. As one court pointed out in construing Ely, “the
taking of a deposition invokes judicial authority in that the issuance of a summons or a subpoena
is used to compel the witness’s attendance.” Ubl v. Kachouroff, 937 F. Supp. 2d 765, 770-71
(E.D. Va. 2013).
9 The Eubanks allege that, after instituting criminal proceedings, the County Employees
met with the Commonwealth’s Attorney and provided him with documentary evidence they
knew to be false. According to the Eubanks, the County Employees also concealed the letter
from the surveyor that the Eubanks had provided to the County, and they did not reveal the
original plat, which showed the house occupying the same footprint today as it did in 1966. The
Eubanks do not point to any particular legal process that the defendants abused. Meeting with
the Commonwealth’s Attorney does not constitute legal process within the scope of this tort.
Neither does withholding adverse evidence. Consequently, the Eubanks’ claim for abuse of
process fails as a matter of law. On this point, we affirm the judgment of the circuit court.
CONCLUSION
For the reasons stated above, the judgment of the circuit court is affirmed in part,
reversed in part, and the case is remanded for further proceedings.
Affirmed in part, reversed in part, and remanded.