The Mathews County Board of Supervisors has filed a motion with Mathews Circuit Court asking that the court dismiss the Hole in the Wall Waterfront Grill suit against the board and two of its supervisors, Dave Jones and Mike Walls.
The county issued a plea of sovereign immunity, stating that, as an agency of the state, the county is “absolutely immune from all claims.” The immunity applies even to intentional torts, stated the motion, including the claims of malicious prosecution and abuse of process that Hole in the Wall is charging.
The motion also included a demurrer to the first amended complaint in the suit, saying that the complaint “fails to state a claim upon which relief may be granted.”
Hole in the Wall’s first amended complaint explains at length the issues that Mac Casale, co-owner of the restaurant, had with Jones and Walls, including his claims that the two supervisors “attempted to use (allegedly) unfounded zoning violations to cause Hole in the Wall to appear in violation of its obligations under the lease,” allegedly either destroyed documents related to zoning and building records for the restaurant or had them destroyed, and allegedly attempted to coerce Casale into changing the terms of the lease so that he would pay for pump and haul services. It also claims that the two men leveraged their position on the board of supervisors to “malign and discredit the reputation and public opinion of Hole in the Wall and its members,” “publicly and derogatorily commented about Hole in the Wall at most public meetings of the board,” and refused to pay the BZA’s legal fees when the BZA found in Hole in the Wall’s favor.
The county’s demurrer states that Hole in the Wall’s claim arises from the zoning administrator’s issuance of a Notice of Violation of a zoning ordinance at Hole in the Wall that the plaintiff claims was a malicious intent to force the plaintiff to breach the lease, shut down the business, and allow the county to take possession of the property. But, says the demurrer, the plaintiff must prove “personal arrest, property seizure or special injury” that results from the malicious prosecution of the original action. The demurrer states that, even if Hole in the Wall’s claims are true, they do not constitute grounds for a charge of malicious prosecution. While the plaintiffs allege that the defendants “threatened potential civil and criminal proceedings,” says the demurrer, they included no allegation that the defendants instituted a “groundless civil proceeding.”
The county also states that Hole in the Wall “fails to state a claim for Abuse of Process.” In order to state such a claim, says the motion, there 1) has to be an ulterior purpose and 2) an act in the use of process must have been not proper “in the regular prosecution of the proceedings.”
“A legitimate use of process to its authorized conclusion, even when carried ut with bad intentions, is not a malicious abuse of that process,” states the motion.
In addition, the allegations were against individual supervisors and do not show any use of process or any improper act by the board as a whole, says the motion. On top of that, the suit doesn’t allege any legal procedures enforced by judicial authority but are related only to uses of process involving investigation and the notice of violation, which the motion claims do not qualify as the “process” required for an abuse of process claim.
“As there is no allegation of any legal procedures that were in fact ‘abused,’ the abuse of process claim fails as a matter of law,” says the motion.
Finally, the motion states that the plaintiff is a corporate entity and is not entitled to recover monetary damages for such intangibles as enjoyment of life, humiliation, mental anguish, and anxiety. It says that the rule can’t be bypassed by claiming compensation for such issues that were allegedly suffered by the plaintiff’s agents.