Eubank lawsuit refiled

by Sherry Hamilton - Posted on Nov 06, 2019 - 02:11 PM

Gwynn’s Island property owners Candy and Mark Eubank of Doswell have again filed a lawsuit against Mathews County Administrator Mindy Conner and two former county employees—John Shaw and Sue Thomas.

The Eubanks previously filed suit against the three in May 2018, but nonsuited the case this past April “for strategic purposes,” according to their attorney, Brenton J. Bohannon of West Point. That action came after the court upheld actions undertaken by the county to force the Eubanks to remove additions to their home that were built without permits and in violation of the Chesapeake Bay Act.

The suit claims “malicious prosecution and abuse of process” against the three county employees for bringing misdemeanor criminal charges against the plaintiffs for what the Eubanks term as “fictitious zoning violations.” In December 2015, the county issued the Eubanks summonses to appear in court in January 2016 on charges that they had violated the zoning ordinance. The charges were dismissed in 2016.

Further, the suit claims that the actions of the county employees “constitute a complete and total disregard of plaintiffs’ rights, were done with actual malice, lacked probable cause.”

In a background statement, the plaintiffs allege that county employees had a plan to acquire the Eubanks’ property at Tin Can Alley for the Middle Peninsula Public Access Authority in order to increase public access to the water in the county. The complaint accuses Conner of looking for ways to “attack the Eubanks” and to “use zoning violations as a ‘weapon’ against (them) … to force them to tear down their home.”

It accuses Thomas of presenting “knowingly inaccurate evidence to secure criminal warrants against plaintiffs” and claims that Shaw “had reasonable knowledge that no violation for the four foot expansion existed” on the property. It also claims that the defendants “intentionally and with malice,” concealing exculpatory evidence from Commonwealth’s Attorney Tom Bowen.

The purported reason for all of these actions, according to the complaint, was to “diminish the Eubanks’ property value, ruin their lives and reputation, and financially exhaust their ability to assert their rights, in order to secure a better deal for the property and thus further Conner’s political ambitions by acquiring more public access.”

The Eubanks are asking that the court award them $1 million in compensatory damages and $350,000 each in punitive damages.

County’s response

In a “defendants’ motion craving oyer” filing, the defendants, represented by Harman Claytor Corrigan & Wellman of Richmond, ask that the court require that the Eubanks make documents available that were mentioned in their initial filing as exhibits but were not attached.

The Eubanks characterized the papers they received from the court as “warrants,” said the motion, which would suggest they were subject to arrest, but the actual papers were summonses.

“A litigant has no right to put blinders on the court and attempt to restrict its vision to only such parts of the record as the litigant thinks tend to support his view,” said the motion. “Making the documents a part of the pleadings is significant, because it allows the court to ignore plaintiffs’ factual allegations that are contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings.” The summonses are included in the county’s filing.

A second motion, a “defendants’ demurrer and plea in bar,” points out that the Eubanks filed the same suit against the defendants on May 14, 2018, after which the Eubanks asked for a continuance, then filed an amended complaint, then nonsuited their amended complaint. Because of this, the motion asks that the Eubanks not be allowed to further amend the complaint.

The motion points out that the summonses were filed against the Eubanks when they did not comply with the zoning administrator’s Notice of Violation and did not subsequently appeal that decision within the 30-day time limit. The fact that they didn’t appeal the decision meant that it became “a thing decided” and thus created “probable cause” for a “reasonable mind” to believe they were guilty, said the motion.

The motion states further that the Eubanks provide no facts to support their claim against the defendants of actual, legal malice and that they offer no facts to support their allegations that either Conner or Shaw initiated or cooperated in the process.

In addressing the Eubanks’ claim of abuse of process, the motion states that the couple offered no “factual allegations as to how the defendants allegedly used the process in an oppressive and malicious manner.” It termed the allegations “conclusory and baseless” and asked that the court dismiss the action.