Oxenham v. Johnson

402 S.E.2d 1, 241 Va. 281, 7 Va. Law Rep. 1699, 1991 Va. LEXIS 27

• Court: Supreme Court of Virginia
• Decided: March 1, 1991
• Docket: Record 900544
• Status: Published

Opinions

JUSTICE WHITING

delivered the opinion of the Court.

In this case, we consider whether a trial court properly imposed a sanction upon a lawyer who brought an unsuccessful action and failed to conduct any pretrial investigation of allegedly adverse information. Specifically, we decide whether, and under what circumstances, the Code § 8.01-271.1 duty of “reasonable inquiry” required the lawyer to investigate information opposing counsel gave him indicating that the lawyer’s client might not prevail in the litigation.

On July 8, 1988, Virginia Johnson, a licensing inspector for the Virginia Department of Social Services, accompanied by Barbara Ann Gestwick, the licensing administrator, and William Davidson, a zoning officer of the City of Richmond, sought permission from Ralph M. Montecalvo to inspect his residence in Richmond for possible violation of Code § 63.1-182. Code § 63.1-182 prohibits the operation of a home for the care of more than four aged, infirm or disabled adults without obtaining a license therefor from the Virginia Department of Social Services.

Upon advice of counsel, Montecalvo refused to permit an inspection. Whereupon, Johnson, Gestwick and Davidson went to a magistrate and got a search warrant.¹ Although allegedly not requested to do so, the magistrate also issued an arrest warrant charging Montecalvo with the statutory violation of interfering with Johnson in the performance of her duties (the interference charge).² The arrest warrant showed that the magistrate found probable cause for the interference charge “based on the sworn statements of Virginia Johnson . . . Complainant.”

Johnson appeared pursuant to subpoena and was the only prosecution witness who testified at the trial of the interference charge. Montecalvo was found not guilty.

Shortly thereafter, Thomas H. Oxenham, III, Montecalvo’s counsel in the criminal proceeding, filed this malicious prosecution action on behalf of Montecalvo against Johnson because of her alleged instigation of the interference charge. In a pretrial deposition, Montecalvo testified that he had never talked to Johnson, that he had not felt “harassed” by Johnson, and that he had no reason to believe she bore him any ill will. Prior to trial, opposing counsel advised Oxenham orally, in responsive pleadings, and in legal memoranda filed in the case, that Gestwick, not Johnson, had executed the affidavit for the search warrant, and that no one had requested the arrest warrant to be issued against Montecalvo for interfering with them in the performance of their duties. Nevertheless, Oxenham continued to press Montecalvo’s claim by filing and signing two memoranda of law and his client’s answers to Johnson’s interrogatories.

At trial, Montecalvo’s evidence that linked Johnson to the institution of the interference charge consisted of the magistrate’s notation on the warrant and Montecalvo’s testimony that Johnson was the only prosecution witness who appeared at the interference charge trial. Johnson’s evidence confirmed her counsel’s pretrial information to Oxenham. After only 10 minutes’ deliberation, a jury returned a verdict for Johnson and judgment was entered on the verdict.

Invoking Code § 8.01-271.1, Johnson filed a “Motion to Assess Attorneys’ Fees and Costs” against Oxenham and Montecalvo,³ alleging violations of a duty to make reasonable inquiry regarding Johnson’s role in the issuance of the arrest warrant. As pertinent, Code § 8.01-271.1 provides:

The signature of an attorney . . . constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact . . ., and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . .

An oral motion made by an attorney ... in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact . . ., and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court . . . shall impose upon the person who signed the paper or made the motion ... an appropriate sanction ....

(Emphasis added.)

Oxenham’s failure, after being told by opposing counsel that Johnson had nothing to do with the issuance of the arrest warrant, led the trial court “to the inevitable conclusion that the purpose of filing the motion for judgment was not to prevail on the merits but to harass the defendant.” The court also found that Oxenham failed in his duty to “continually review and re-evaluate his position” by failing to “follow up with investigation or . . . conduct any discovery.”

Accordingly, the court assessed a sanction against Oxenham in the sum of $4,500, representing a part of Johnson’s counsel’s projected billings of $10,383. Oxenham appeals.

First, we review some of the policy considerations in sanction cases. The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes. And, sanctions can be used to protect courts against those who would abuse the judicial process. Yet the threat of a sanction should not be used to stifle counsel in advancing novel legal theories or asserting a client’s rights in a doubtful case. Finally, courts should take care that the litigation of a sanction issue does not itself defeat one purpose of Code § 8.01-271.1, that of reducing the volume of unnecessary litigation.

Because of the harm that can be caused by an unjustified imposition of a sanction, Oxenham argues that the standard of review applicable in a sanction case in Virginia is “somewhat deferential . . . [but] appears more closely akin to a de novo review” than to an abuse-of-discretion standard. Oxenham notes that in Cooter & Gell v. Hartmarx Corp., 496 U.S. _,_, 110 S.Ct. 2447, 2461 (1990), the United States Supreme Court held that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.”⁴ Oxenham, however, contends that this Court has adopted a standard “somewhat at odds” with the federal standard, citing County of Prince William v. Rau, 239 Va. 616, 620, 391 S.E.2d 290, 293 (1990), and Tullidge v. Board of Sup. of Augusta County, 239 Va. 611, 614, 391 S.E.2d 288, 289 (1990). These cases do not support Oxenham’s contention.

Tullidge merely held that where the issue underlying the imposition of a sanction “is one of law, and not fact, we do not accord the trial court’s ruling the same weight it would be accorded if reached upon conflicting factual evidence.” 239 Va. at 614, 391 S.E.2d at 289; see Rau, 239 Va. at 620, 391 S.E.2d at 293. This holding does not differ in substance from the statement in Cooter & Gell that “[a trial] court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” 496 U.S. at _, 110 S.Ct. at 2461 (emphasis added). Thus, we apply an abuse-of-discretion standard in reviewing a trial court’s award or denial of a sanction.

We now turn to this case. To create a factual issue in his malicious prosecution action against Johnson, Montecalvo was required to present credible evidence: (1) that the prosecution was set on foot by Johnson and that it terminated in a manner not unfavorable to Montecalvo; (2) that it was instituted or procured by the cooperation of Johnson; (3) that it was without probable cause; and (4) that it was malicious. See Bain v. Phillips, 217 Va. 387, 393, 228 S.E.2d 576, 581 (1976). Legal malice, inferred from the circumstances, suffices for an award of compensatory damages, but actual malice must be shown to recover punitive damages. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246, 252, 198 S.E.2d 595, 600 (1973).

Johnson contends that Montecalvo had no evidence that she instituted the prosecution or that her actions were malicious. According to Johnson, if Oxenham had complied with his duty of “reasonable inquiry” and interviewed her witnesses at any time before trial, he would have discovered that he could not have established that Johnson “instituted or procured” the prosecution or that she acted with malice. Therefore, Johnson argues, Oxenham’s pleadings and oral motions violated Code § 8.01-271.1 because they were frivolous and were filed for an improper purpose.

Because no cross-error was assigned to the trial court’s ruling that the initial filing was justified, we are concerned only with Oxenham’s conduct after the action was filed. Although we agree with Oxenham’s contention that Code § 8.01-271.1 imposes no continuing duty upon a lawyer to “update his pleadings in light of any new findings,” see Pantry Queen Foods v. Lifschultz Fast Freight, 809 F.2d 451, 454 (7th Cir. 1987) (construing Federal Rule of Civil Procedure 11), we reject his contention that he had no further duty to investigate Johnson’s role after filing the motion for judgment. The duty of “reasonable inquiry” arises each time a lawyer files a “pleading, motion, or other paper” or makes “an oral motion.” Code § 8.01-271.1. If Oxenham had filed any paper or made any motion in the case after he knew, or reasonably should have known, that he could not create a factual issue of Johnson’s involvement and malice, the court would have been justified in imposing a sanction against him. See, e.g., Schoenberger v. Oselka, 909 F.2d 1086, 1088 (7th Cir. 1990) (construing Federal Rule of Civil Procedure 11).

Because different levels of malice are required in the recovery of compensatory and punitive damages for malicious prosecution, we consider first Montecalvo’s claim for compensatory damages. Initially, the trial court found that the documentary and circumstantial evidence of Johnson’s role in the institution of the criminal action against Montecalvo was sufficient to justify filing Montecalvo’s malicious prosecution action. Apparently, the same evidence also justified submission of the case for jury consideration.⁵ Indeed, the jury may not have believed the three witnesses who, in contradiction to the language in the arrest warrant, denied Johnson’s role in instituting the interference charge against Montecalvo. Juries are not required to accept testimony which is contradicted by credible documentary or circumstantial evidence. See Chaves v. Johnson, 230 Va. 112, 122-23, 335 S.E.2d 97, 104 (1985) (circumstantial and documentary evidence); Drake v. National Bank of Commerce, 168 Va. 230, 243-44, 190 S.E. 302, 308 (1937) (circumstantial evidence).

Additionally, the appearance of Johnson’s name as the complainant on the arrest warrant sufficed to support an inference that she acted with legal malice in instigating the interference charge against Montecalvo. Whoever caused the arrest warrant to issue had no probable cause to claim an unlawful interference with Johnson’s performance of her duties because Montecalvo had a constitutional right to require a search warrant before such an inspection. This lack of probable cause was sufficient to support an inference of Johnson’s legal malice. Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271, 276 (1967). Accordingly, the trial court’s conclusion that this claim was frivolous was erroneous and an abuse of discretion.

Next, we consider whether the evidence supports the trial court’s finding that Oxenham’s failure to investigate Montecalvo’s claim for compensatory damages demonstrated an intent “not to prevail on the merits but to harass [Johnson].” Although a number of adverse inferences might be drawn from Oxenham’s failure to make any investigation after filing the motion for judgment, an intent to harass is not one of them. The record contains no evidence of threats or expressions of ill will on Oxenham’s part, no pattern of persistent and harassing pleadings, and nothing to show that Oxenham was not attempting to recover damages for his client. Under these circumstances, we conclude that the trial court’s inference of an intent to harass from a failure to investigate was based on a clearly erroneous assessment of the evidence and, therefore, was an abuse of discretion.

For these reasons, we hold that the trial court erred in basing its award, in whole or in part, upon Oxenham’s continued assertion of Montecalvo’s claim for compensatory damages.

We now consider whether the sanction might have been justified because of Oxenham’s continued assertion of the punitive damage claim. Johnson’s legal malice in instigating the arrest warrant would not have authorized an award of punitive damages. In malicious prosecution actions, evidence of “misconduct or actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others” is required. Giant of Virginia, 207 Va. at 685, 152 S.E.2d at 277.

Montecalvo’s pretrial discovery testimony established conclusively that Johnson was not guilty of misconduct or actual malice. Furthermore, if Oxenham had made “reasonable inquiry,” he would have known, or reasonably should have known, that he had no evidence that Johnson had acted in reckless and wanton disregard of Montecalvo’s rights. Therefore, Oxenham should not have asserted Montecalvo’s frivolous claim for punitive damages at trial.

However, the trial court did not distinguish between the two damage claims in its award of an attorneys’ fee sanction. Attorneys’ fee sanctions have been imposed under Federal Rule 11 for asserting a frivolous claim with nonfrivolous ones, where the defense of the frivolous claim was essentially unrelated to the defenses of the nonfrivolous claims. Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (suing a party who had no conceivable liability in a separate count of a multiple count complaint); Frantz v. U.S. Powerlifting Fed’n, 836 F.2d 1063, 1067 (7th Cir. 1987) (assertion of baseless legal theory in multiple count antitrust complaint containing other counts with colorable legal theories).

Here, however, any award of damages, compensatory and punitive, would have turned largely upon what inferences a jury might draw from Johnson’s actions in instigating the arrest warrant. Indeed, Johnson’s liability for punitive damages depended upon an award of compensatory damages, Valley Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d 291, 297 (1985), and any such award would have had to bear a reasonable relation to the award of compensatory damages. Philip Morris Inc. v. Emerson, 235 Va. 380, 414, 368 S.E.2d 268, 287 (1988).

Here, the elements of Montecalvo’s claim for compensatory damages are subsumed in his claim for punitive damages. Additionally, the sanction requested and imposed was an award of attorneys’ fees. Therefore, Johnson’s attorneys’ time spent in defending the punitive damage claim should have been segregated and the sanction based only on the time taken in defending that claim. Although the trial court did not award the full amount of the attorneys’ fees claimed, it based its award upon a projection of the time Johnson’s attorneys spent in defending the entire case. In doing so, it based its conclusion upon an erroneous application of the law and thereby abused its discretion.

We further are of opinion that any effort to segregate the additional expense and anguish occasioned by Oxenham’s continued assertion of a frivolous claim for punitive damages would impose additional and unnecessary burdens upon Johnson and the trial court. Under these circumstances, we will reverse the trial court’s sanction' of the payment of attorneys’ fees and enter final judgment for Oxenham on that issue.

Reversed and final judgment.

1 The inspection confirmed that Montecalvo was operating an adult home without a license, and he later pleaded guilty to a violation of Code § 63.1-182.

2 Code § 63.1-182 provides in part that “[a]ny person who interferes with any authorized agent of the Commissioner [of Social Services] in the discharge of his duties . . . shall be guilty of a misdemeanor.”

3 Concluding that there was no evidence that Montecalvo had participated in “the frivolous filing and prosecution of this suit,” the trial court denied the motion for a sanction against him.

4 Rule 11 of the Federal Rules of Civil Procedure and Code § 8.01-271.1 are similar in the respects material here.

5 Citing Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985), the trial court said that “[t]he only reason the case survived the motion to strike was the court’s policy against striking the evidence in order to preserve a full record on appeal . . . .” However, in conformity with Brown, the court must have concluded that the evidence did not make it “conclusively apparent that plaintiff ha[d] proven no cause of action against defendant.” Id. at 531, 331 S.E.2d at 445 (citation omitted).