
    LAW AND EQUITY COURT OF THE CITY OF RICHMOND
    John P. O’Brien v. Endredi Corp., Virginia Landmark Corp., Mrs. Johnnie A. Pedigo, Larry C. Brown, and Glenn P. Clement, Jr. Maureen P. O’Brien v. Endredi Corp., Virginia Landmark Corp., Mrs. Johnnie A. Pedigo, Larry C. Brown, and Glenn P. Clement, Jr.
    June 4, 1971
   By JUDGE A. CHRISTIAN COMPTON

Enclosed you will find a copy of the orders entered in these cases today sustaining the special pleas and demurrers filed by the defendants Endredi, Landmark, Pedigo and Brown. Since this ruling declares the motions for judgment insufficient in law, they are also dismissed as to the defendant Clement, who has filed his grounds of defense. Leave to amend is granted to the plaintiffs, if they be so advised.

The plaintiffs are seeking, recovery of compensatory and punitive damages against the defendants jointly and severally upon the tort of malicious abuse of process. The respective motions for judgment allege that the plaintiffs leased a certain apartment from the owner Endredi and as the result of certain differences which arose between the plaintiffs and the defendants relating to the alleged breach by the plaintiffs of certain portions of the lease agreement, the defendant Endredi, by and through the defendant Landmark, instituted first an action of unlawful detainer in the Civil Justice Court of the City of Richmond seeking to obtain possession of the premises and, later, but while the unlawful detainer action was still pending and undetermined, a proceeding in the Hustings Court for the City of Richmond, Part II, wherein a temporary restraining order was entered (plaintiff’s exhibit D to the motions for judgment). The claims herein asserted find their basis mainly in the latter proceeding.

The restraining order dealt with the keeping of live animals on the premises, with the refusal to permit the owner to inspect the premises, and with the personal conduct of the plaintiffs and their children.

The plaintiffs further allege in paragraph 13 of the respective motions for judgment as follows:

13. Nevertheless, the defendants, jointly and severally, willfully and maliciously, and with utter disregard for the rights, sensibilities, good names and reputations of the [parties], and each of them, wrongfully and unlawfully attempted to coerce the [parties] to vacate the apartment by instituting and prosecuting the injunctive proceeding, making the unjustified, untrue and unwarranted allegations therein, in spite of the fact that there was then pending the unlawful detainer action in the Civil Justice Court for the City of Richmond set for trial on July 21, 1969, that being the proper action to determine the right of the [parties] to remain in said apartment; and thus were guilty of willful and malicious abuse of process in the institution and prosecution of the injunctive proceeding and the making of the unjustified, untrue and unwarranted allegations therein. (Italics supplied.)

The parties do not disagree upon the law applicable. Even though Endredi labels one of its pleadings "Special Plea in Bar," the sole question before the Court is whether the respective motions for judgment are sufficient in law.

The essential elements to support a cause of action of abuse of process are, "first, an ulterior motive, and secondly, an act in the use of the process not proper in the regular prosecution of the proceeding, though it is immaterial whether such process is baseless or not, the abuse consisting in its perversions to some unlawful purpose and in the willful and oppressive use of it after its issue." Glidewell v. Murray-Lacy, 124 Va. 563, 572 (1919). See also Mullins v. Sanders, 189 Va. 624, 632, 633 (1949).

The standard to be used by the Court to test the sufficiency of a motion for judgment upon demurrer has been fully stated in Ames v. American National Bank, 163 Va. 1 (1934), at pages 37 and 38 as follows:

A demurrer admits that all material facts which are well pleaded are true. Facts well pleaded, and therefore admitted, are (1) facts expressly alleged, (2) facts which are by fair intendment impliedly alleged, and (3) facts which may be fairly and justly inferred from the facts alleged. Facts sufficiently alleged must be taken as true (unless they are inherently impossible, or contradicted by other facts pleaded) even though the court may be of opinion that it is improbable that they are true. And all reasonable inferences of fact which a trier of facts may fairly and justly draw from the facts alleged must be considered by the court in aid of the pleading. But the demurrer does not admit the correctness of the conclusions of law stated by the pleader, or that the inferences of fact drawn by the pleader from facts alleged may be fairly and justly drawn therefrom.

Measuring these motions for judgment by this yardstick, the Court finds that they fail to sufficiently allege any matters of fact which constitute "an act in the use of the process not proper in the regular prosecution of the proceeding." (Italics supplied.)

The allegation of ulterior motive is sufficiently set forth when the plaintiffs allege that the defendants wrongfully attempted to coerce the plaintiffs to vacate the apartment by instituting and prosecuting the suit. However, as to the second necessary element, there is found in paragraph 13 only the mere general conclusion of law that the defendants "were guilty of willful and malicious abuse of process in the institution and prosecution of the injunctive proceeding." The improper "institution" of the injunctive proceeding will not afford a ground for relief upon the theory of abuse of process. Furthermore, the allegation that the defendants wrongfully "prosecuted" the suit fails to assert any facts to support the conclusion that the injunctive process was perverted to any unlawful purpose. The term "prosecution," as applied to civil litigation, includes carrying on every step in the action from its commencement to its final determination. Black’s Law Dictionary, Third Edition, p. 1451. The mere carrying on of the litigation, even with an ulterior motive, is not a sufficient showing to support an action of abuse of process. There must be some act or acts alleged which show an "improper use of regularly issued process." 189 Va. 633. Such facts have not been "expressly alleged" nor are such facts "by fair intendment impliedly alleged" nor may such facts be "fairly and justly inferred from the facts alleged." Such being the case, the motions for judgment are insufficient in law.

In view of what has been said above, it is not necessary for the Court at this time to rule upon the compromise and settlement issue raised by the defendant Endredi.  