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COMMISSARY CONCEPTS MANAGEMENT CORP., ET AL. v. Record No. 031233 OPINION BY JUSTICE ELIZABETH B. LACY April 23, 2004

FALAKI MZIGUIR FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Joanne F. Alper, Judge Falaki Mziguir filed a malicious prosecution action against Commissary Concepts Management Corporation (Commissary Concepts) and Generous George's Positive Pizza, Inc.* The jury

returned a verdict in favor of Mziguir awarding him $25,175 in compensatory damages and $25,000 in punitive damages. Commissary Concepts and Generous George's Positive Pizza, Inc. filed this appeal, asserting that the evidence at trial was insufficient to support a finding of malicious prosecution and that the jury's damage awards were excessive. Since Mziguir obtained a jury verdict that the trial court approved, we review the evidence in the light most favorable to him in determining whether there was evidence to support the verdict. Stanley v. Webber, 260 Va. 90, 92, 531

S.E.2d 311, 312-13 (2000).

Mziguir's motion for judgment initially included counts of false imprisonment and intentional infliction of emotional distress and named Mary Holder as a defendant. Mziguir nonsuited the additional counts prior to trial, and the trial court granted Holder's motion to dismiss following the close of Mziguir's evidence.

*

Commissary Concepts provided management services for and supervised the daily operation of Generous George's pizza restaurant. Mary Holder was the chief operating officer and

chief financial officer for Commissary Concepts and Todd J. Kamber was the general manager of the restaurant. employed as a manager at the restaurant. The restaurant's standard operating procedure required that the manager on duty at the close of business fill out a daily sales reconciliation form, complete a deposit slip for the deposit of the money received that day, and put the slip and the money in the restaurant's safe. The manager on duty Mziguir was

the following morning was responsible for depositing the funds in the bank. On October 13, 2000, Kamber met with Mziguir and the restaurant's other managers to discuss recent problems with missing funds, including funds missing during Mziguir's shifts. At that meeting, Kamber told the group that he would

"catch" the person taking the money and "prosecute him." On October 16, 2000, Kamber, as the manager on duty at the close of business, filled out the daily reports and a deposit slip and put the deposit slip and money in the safe. Mziguir was on duty the following day. Due to the high volume

of business at the restaurant, Mziguir did not make the bank deposit until early afternoon. When he took the deposit to

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the bank, the teller informed him that the deposit contained more cash than the deposit slip indicated. Mziguir took the

excess money in cash, amounting to $297, back to the restaurant where he put the bank envelope containing the excess money into another envelope, on which he wrote "Don't open 10/17/00 To Mary Holder." He then put both envelopes Although Holder was at the

inside the safe at the restaurant.

restaurant throughout the day and early evening, Mziguir did not mention the money to her or anyone else at the restaurant for the remainder of the day. The following morning, Commissary Concepts' accounting staff discovered the $297 discrepancy between the deposit slip and the daily sales reconciliation paperwork. When the staff

told Holder of the missing money, she discussed the matter with Kamber and contacted the bank. The bank informed her

that $297 had been returned to Mziguir. Mziguir was not at the restaurant that day because he was not scheduled to work until October 19. discuss the matter with him. Holder did not

Kamber and Holder searched the

office area and the office safe but did not find the missing money. Holder authorized Kamber to contact the police. When

Officer Rick Elkins arrived at the restaurant and interviewed Holder and Kamber, they told Elkins about the missing money and the information they received from the bank. They also

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told Elkins that they suspected that Mziguir had "possibly embezzled" the money and that the management of the restaurant was "interested in proceeding forward with charges . . . if this offense was found to be valid." Elkins left the restaurant and conducted an interview with the bank teller who repeated the course of events to him. Based on these conversations, Elkins obtained a warrant from a magistrate for the arrest of Mziguir. On the morning of October 19, 2000, Elkins served Mziguir with the arrest warrant at his apartment, handcuffed him, walked him through his apartment building, and took him by police car to the Alexandria police station. At the police

station, Mziguir told Elkins that he did not take the money from the business and that the cash was in the safe at the restaurant. Elkins testified that Mziguir said that he "felt

he was being set up and that he hid it until he could talk to somebody else about the money." Elkins telephoned Holder,

asking her to search the safe again for the missing money. Holder did not locate the money until Mziguir gave her specific instructions regarding where in the safe he had put the money. Holder informed the officer that the money was in

an envelope inside some documents in a part of the safe where money was not normally kept. At that point, Elkins and Holder

agreed that the charges against Mziguir would be dropped.

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DISCUSSION In an action for malicious prosecution, the plaintiff has the burden of showing that the prosecution was malicious, instituted by or with the cooperation of the defendant, without probable cause, and terminated in a manner not unfavorable to the plaintiff. Lee v. Southland Corp., 219 Va. Commissary Concepts

23, 26, 244 S.E.2d 756, 758 (1978).

contends that the evidence in this case was insufficient to support a finding of malicious prosecution because Mziguir did not establish that the prosecution was malicious, instituted without probable cause, and with Commissary Concepts' cooperation. Malice may be inferred from a lack of probable cause, but a lack of probable cause cannot be inferred from malice. Bill

Edwards Oldsmobile, Inc. v. Carey, 219 Va. 90, 100, 244 S.E.2d 767, 773 (1978). Accordingly, we begin by considering whether

the evidence was sufficient to support a finding of probable cause. We have defined probable cause, in the context of

malicious prosecution, as " 'knowledge of such a state of facts and circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected.' " Id. at 97, 244 S.E.2d at 772, quoting Virginia R. & P. Co. v. Klaff, 123 Va. 260, 266, 96 S.E. 244, 246 (1918). Whether

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probable cause existed is determined as of the time when the complained of action was taken. Id. at 98, 244 S.E.2d at 773.

A person who is entrusted with possession of another person's property and who converts such property to his own use or benefit is guilty of the statutory offense of embezzlement. Code

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