UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD F. ROGERS,
Plaintiff-Appellee,

v.
                                                                   No. 95-2579
UNUM LIFE INSURANCE COMPANY OF
AMERICA; CHARLES R. ROSE,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-95-47-R)

Argued: April 3, 1996

Decided: May 29, 1996

Before WILKINSON, Chief Judge, and NIEMEYER and
HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Charles Michael DeCamps, SANDS, ANDERSON,
MARKS & MILLER, Richmond, Virginia, for Appellants. Steven
Scott Biss, MALONEY, BARR & HUENNEKENS, P.C., Richmond,
Virginia, for Appellee. ON BRIEF: Henry C. Spalding, III, SANDS,
ANDERSON, MARKS & MILLER, Richmond, Virginia, for Appel-
lants. John S. Barr, Fred R. Kozak, MALONEY, BARR & HUEN-
NEKENS, P.C., Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald Rogers filed this diversity action against Unum Life Insur-
ance Company of America and Charles R. Rose for malicious prose-
cution under Virginia law after having been arrested, on Unum's
complaint, for burglary, grand larceny, and trespass. Following a
bench trial, the district court entered findings of fact and conclusions
of law, ruling in favor of Rogers and awarding him judgment against
Unum and Rose in the sum of $81,938.

On appeal Unum and Rose contend that (1) numerous findings of
fact by the district judge are clearly erroneous, and (2) in any event,
they had probable cause to believe that Rogers committed the crimes
charged, defeating the claim for malicious prosecution.

We have carefully reviewed the district court's findings and con-
clude that they are not clearly erroneous. And based on these findings,
Rogers satisfied all of the elements of a malicious prosecution claim
under Virginia law. Accordingly, we affirm.

I

On September 19, 1994, upon arriving at a sales meeting in Colum-
bia, Maryland, Rogers was terminated from his employment with
Unum Life Insurance Company of America by his supervisor, Charles
Rose. Rogers testified that his meeting with Rose was short, lasting
five to six minutes, and that Rose stated that Rogers need not turn in
his keys and credit card at that time, but to meet him at the Richmond,
Virginia, office the following day. The district court found that at no
time did Rose instruct Rogers to stay away from Unum's Richmond
office until they were to meet the next day. Rose's testimony about
the meeting contradicted that factual finding; he testified that he spe-
cifically instructed Rogers not to return to the Richmond office.

                     2
After having been terminated, Rogers called the Richmond office
and spoke with Myrna Seward, an office assistant. As Rogers related
the conversation, he told Seward that he would like to come by to
pick up his items, to which Seward responded, "Just don't," and "No,
don't come by now." Rogers stated that she sounded as if she were
crying. Rogers agreed not to come by while Seward was at work. He
testified, however, that at no time did Seward indicate that he was not
permitted to return to the office. Seward's testimony about the con-
versation was not inconsistent except that she testified that she told
Rogers "Don, please don't put me in a position of trying to come by,"
because she had been instructed not to let him in, to which Rogers
responded, "I'll respect that." The district court made the factual find-
ing that Rogers agreed, upon Seward's request, not to return to the
office while she was at work.

Rogers did return to his office after closing hours that evening,
however, and removed his personal property from the office. When
he went to the office, he discovered that his key did not open the door
to the premises. But one of the building cleaning staff recognized
Rogers and used a master key to let him in. Rogers testified that he
had experienced a similar problem in the past with the lock and
thought it was acting up again. In fact, however, after Rose terminated
Rogers, he called the Richmond office to instruct them to have the
office locks changed that day. Rogers had his wife bring their minivan
to the office because he had a large number of plants, pictures, and
miscellaneous items to move. In addition to removing his personal
belongings, Rogers apparently removed a number of files and other
material which he had been using to market Unum's products, includ-
ing some applications from potential customers for coverage.

On the morning of September 20, when Seward came to work and
discovered that Rogers had emptied his office, she called Rose, who
was driving from Maryland to Richmond to meet with Rogers. Upon
hearing that Rogers had entered his office, despite the lock change,
Rose instructed Richmond personnel to report a theft to the Henrico
Police Department and to have the police available upon his arrival
in Richmond. At about 1 p.m. on September 20, Rose met with Sew-
ard and Steven Osborne, Roger's former coworker, and Officer Crow-
der of the Henrico Police Department. Officer Crowder was informed
of what had occurred and asked a number of questions concerning

                     3
any Unum property that may be missing and its value. Officer Crow-
der was told that, in addition to the files, a refrigerator, a display
easel, and a projector were missing. All agreed that these were the
only items of value thought to be missing. There was, however, sub-
stantial doubt as to whether Rogers had illegally taken these items.
Seward testified that there was uncertainty about who owned the
refrigerator. While she made some inquiries to try to determine that,
she was unable to obtain an answer. Osborne testified that the easel
and the projector might have been legally in Rogers' possession since
those were items assigned to him and maintained by him in his car
for sales presentations. These concerns, Osborne testified, were surely
communicated to Officer Crowder. But Officer Crowder's testimony
contradicted that of Osborne's and Seward's. Officer Crowder testi-
fied that Rose advised him that the refrigerator belonged to Unum and
that no one informed him that the projector and easel may have been
lawfully in Rogers' possession. The district court found that the
refrigerator belonged to Rogers, that the projector and easel had not
been in the office, and that Rogers later returned company files on
request.

Officer Crowder also testified that while he was at the Unum
offices, Rose called Unum's in-house attorney, Heidi Osborn, for
advice. Officer Crowder explained to Rose, while attorney Osborn
was on the telephone, that Unum had three options--it could sue civ-
illy to get the property back; it could proceed with a misdemeanor
prosecution; or, because of the value of the missing items, it could
proceed with felony prosecutions and obtain warrants for Rogers'
arrest. Officer Crowder testified that Rose and Osborn collectively
elected to prosecute felony charges and have the officer obtain arrest
warrants. The district court found that Rose and Unum's in-house
counsel instructed Officer Crowder "to proceed to take whatever
action was necessary to implement the felony routine," and that Rose
and Osborn "instigated the prosecution of Rogers and personally
requested the issuance of criminal warrants for his arrest." While the
district court acknowledged that Unum had asserted the defense that
it acted on the advice of its counsel, the court found that Unum did
not call Heidi Osborn as a witness at trial, even though she was pres-
ent in court, to testify about the advice that she gave or the facts that
she was presented with before she rendered such advice.

                     4
Based upon the information furnished by Unum personnel, Officer
Crowder obtained a warrant for Rogers' arrest, charging him with (1)
stealing an overhead projector, a refrigerator, and a flip-chart with
easel, having a value of $200 or more "with the intent to permanently
deprive the owner"; (2) breaking and entering Unum's offices in the
nighttime "with the intent to commit larceny"; and (3) trespassing
upon the property of Unum after having been forbidden to do so.

On September 27, 1994, the police department called Rogers to
advise him about the warrant and Rogers voluntarily turned himself
in and was booked and charged. On November 2, 1994, the Common-
wealth's attorney requested the court to nolle prosequi the felony
counts for burglary and grand larceny. Neither Rose nor any other
Unum employee appeared to testify. The trespass charge was contin-
ued to December 7, 1994, at which time the court granted Rogers'
motion to dismiss. Again neither Rose nor any Unum employee
appeared to testify. Unum contends that it had not been made aware
of the trial dates.

After making findings of fact, the district court concluded that (1)
the prosecution was set afoot by Rose and Unum; (2) the prosecution
was procured with the cooperation of Rose and Unum; (3) the prose-
cution was without probable cause; and (4) the prosecution was mali-
cious. The court also found that Rose and Unum failed to prove that
they relied upon the advice of counsel or that they made a full, cor-
rect, and honest disclosure to their counsel of all of the material facts.

II

Unum and Rose contend that several of the district court's findings
of fact are clearly erroneous. While some of the findings may be
questionable, and indeed in some instances irrelevant, we address
only the findings that may be relevant to the malicious prosecution
claim.

The appellants first challenge the finding that Officer Crowder
"was instructed by Ms. Osborn[ ] and Rose to proceed to take what-
ever action was necessary to implement the felony routine." The dis-
trict court chose to believe the testimony of Officer Crowder that
Rose and Osborn requested that he pursue the felony prosecution of

                     5
Rogers. While there was conflicting testimony presented by Rose and
Steven Osborne, the issue is one of credibility, and the district court
had the right to credit Officer Crowder's testimony. Such a factual
finding is not clearly erroneous.

Appellants also challenge the finding that "[a]t no point did anyone
from UNUM mention [to Officer Crowder] the fact that the easel and
projector were most generally in the possession of either Rogers or
Osborne since they were used on a daily basis in making sales presen-
tations to prospective clients." While Osborne testified, "I'm sure that
was communicated to [Officer Crowder], yes," he also testified that
he could not recall whether he told Officer Crowder that the easel and
projector were normally taken out of the office. On the other hand,
Officer Crowder testified that he was never informed of this informa-
tion. Again, the district court chose not to credit Osborne's assertion
that this information was communicated to Officer Crowder. The dis-
trict court made a credibility determination that is not clearly errone-
ous.

The appellants also challenge the finding that "[a]t no time did
Rose instruct Rogers to stay away from UNUM's Richmond office
until he was to meet Rose at Noon on September 20." Rose testified
that he specifically told Rogers not to go to the Richmond office. But
Rogers testified that when he was asked whether Rose gave him any
specific instructions during the termination meeting, Rose indicated
he was in a hurry and said he would resolve any outstanding issues
in Richmond the following day. Rogers said he was never told not to
go to the Richmond office. Again the question is one of credibility
and the district judge chose not to credit the testimony of Rose.

The appellants challenge the finding that Seward"requested that
[Rogers] not come to the office while she was present." Again, Rog-
ers testified to this effect and Seward's testimony is not directly in
conflict.

Finally, the appellants challenge the finding that"Rose did not
return telephone calls when Rogers left messages," after his termina-
tion. Rogers testified that on September 20, he called Rose twice and
was unable to reach him and did not leave a message. The second
time he spoke with an employee and mentioned that he was not able

                    6
to get a hold of Rose and that he needed to find something out. Rog-
ers also testified that after his arrest he left Rose a message, which
was not returned. It is questionable from this testimony whether suffi-
cient evidence was produced from which to conclude that "Rose did
not return telephone calls when Rogers left messages."

Despite our conclusion that the district court's material factual
findings are not clearly erroneous, the question remains whether these
findings legally support a claim for malicious prosecution under Vir-
ginia law.

III

In order to state a claim for malicious prosecution, a plaintiff must
present evidence that (1) the prosecution was set on foot by the defen-
dant and that it was terminated in a manner not unfavorable to the
plaintiff; (2) the prosecution was instituted or procured by the cooper-
ation of the defendant; (3) it was without probable cause; and (4) it
was malicious. See Oxenham v. Johnson, 402 S.E.2d 1, 4 (Va. 1991)
(citation omitted). The appellants contend that Rogers has failed to
present sufficient evidence of element 3--that their effort to prosecute
Rogers was without probable cause.

Probable cause, the presence of which will defeat a malicious pros-
ecution action, is defined 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." Bain v. Phillips , 228 S.E.2d 576, 581 (Va.
1976) (citations omitted). We conclude that the facts that are not
clearly erroneous support the district court's conclusion that Unum
did not have probable cause to initiate the prosecution.

According to Rogers' testimony, which the district court credited,
Rose and Rogers had agreed to meet at noon on September 20 when
Rogers would turn in his credit card and keys. Up until that time,
Rogers was entitled to enter his office and no one instructed him oth-
erwise. His only reason for not doing so during working hours was
to accommodate a fellow worker, who was apparently upset. The
refrigerator that was the subject of the complaint belonged to Rogers
and had been purchased by him during college years. And the easel
and projector had been issued to him for sales presentations. Like-
wise, company files in his possession were lawfully in his possession

                    7
and had not yet been requested or returned. In short, under the district
court's factual findings, Unum could not reasonably have believed
that a trespass or burglary occurred or that Rogers had stolen any-
thing.

Unum and Rose undoubtedly were in a difficult position. Busi-
nesses often have the unpleasant task of terminating employees and,
in doing so, protecting the business from the potential responses of
upset employees. One way that a business protects itself is to secure
immediately its property and proprietary information. Nevertheless,
the evidence in this case supports the claim that Unum and Rose may
have been too aggressive in protecting their interests and that they
overstepped the bounds of propriety in seeking a felony arrest of a
former employee, without ascertaining the justification for such an
action.

Unum and Rose contend that they acted in good faith, relying upon
the advice of counsel, and that such reliance constitutes probable
cause, even if the advice turns out to be incorrect. It is indeed true that
the advice of counsel constitutes a complete defense under Virginia
law to an action for malicious prosecution. See Spitzer v. Clatterbuck,
121 S.E.2d 466, 468 (Va. 1961). But the burden is on the defendant
to prove that counsel's advice was obtained with the honest purpose
of being informed as to the law, and was procured upon a full, correct,
and honest disclosure of all material facts. Id. Appellants' affirmative
defense of the advice of counsel fails in this case because, as the dis-
trict court found, they did not prove that Rose fully, correctly, and
honestly disclosed all material facts of which he knew, or should have
known upon a reasonable investigation, or that in good faith he fol-
lowed his counsel's advice. Indeed, Unum's in-house counsel was not
called to testify as to what Rose had informed her and what advice
she had given to Rose. Cf. Bill Edwards Oldsmobile v. Carey, 244
S.E.2d 767, 772 (Va. 1978) (holding that affirmative defense of
advice of counsel was not available to defendant who did not call
counsel to testify as to what was disclosed and did not otherwise
establish that full information was communicated to counsel).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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