February date set for hearing on G.I. lawsuit

by Sherry Hamilton - Posted on Jan 08, 2020 - 07:14 PM

A hearing has been set for Feb. 28 on motions in a lawsuit brought by Gwynn’s Island property owners Mark and Candy Eubank against Mathews County Administrator Mindy Conner and former Wetlands Administrator Sue Thomas and Planning and Zoning Director John Shaw. The motions will be heard at 1:30 p.m. in Gloucester Circuit Court.

A “motion craving oyer,” which calls on the plaintiffs to produce the documents on which they’re basing their case, and a “demurrer and plea in bar,” which challenge the legal sufficiency of the plaintiffs’ claims, were filed in the case on Oct. 25. As of Monday, no response to the motions had been filed by the Eubanks.

According to the paperwork, this is the third time motions on the suit have been filed. The Eubanks’ initial suit was filed on May 14, 2018, and the defendants responded with their initial motion craving oyer and demurrer and plea in bar.

The Eubanks then amended their complaint on Nov. 30, 2018, and the defendants filed their response once again. The hearing on those motions was in progress on April 26, 2019 when the Eubanks decided to nonsuit their amended complaint.

On Oct. 1, 2019, the Eubanks refiled their complaint, and again, the attorneys for Conner, Thomas and Shaw responded with their motions. This time, they asked the court to refuse to allow the Eubanks to amend their complaint further “as this is the third iteration of the complaint filed by these plaintiffs on the same causes of action.”

According to documentation in the December board of supervisors packet, the suit the Eubanks filed against the county as a whole has thus far cost the county $125,600 in legal fees. However, Conner said that she, Shaw and Thomas are being defended with funds from their civil employees insurance, not county funds, and thus this suit has cost the county nothing.*

Background

In their complaint, the Eubanks claim that they were subject to “malicious prosecution” and “abuse of process” by the county officials named in the suit after those officials had them summonsed to court in October 2015. Then-planning and zoning director John Shaw had notified the couple that they had committed violations of the zoning ordinance by constructing additions onto their vacation cottage without permits. The property is located at the corner of Sweet Gum Drive and Old Ferry Road, adjacent to Tin Can Alley on Gwynn’s Island. The Eubanks did not respond to the county’s initial notice of violation or file an appeal of Shaw’s decision within the required amount of time. Shaw’s decision that the additions were in violation of the zoning ordinance was later upheld in Circuit Court.

The summonses were eventually nolle prossed/dismissed by Mathews Commonwealth’s Attorney Tom Bowen, but the Eubanks claim in their suit that “the criminal process was used ‘in an attempt to force Plaintiffs to remove portions of their house and lower its value, to presumably allow the county to eminent domain the Plaintiffs’ Property for less money and for the primary purpose of furthering their careers and political ambitions.’”

Attorneys for the county employees say in their motion that the Eubanks’ allegations are “conclusory and baseless” and that they “alleged no act after process was issued that abused or perverted the criminal prosecution.”

“This is fatal to the claim for abuse of process,” say the defendants in the demurrer and plea in bar.

Further, the defendants’ motion craving oyer states that the plaintiffs base their claims on documents that they haven’t provided, and that the defendants want the court to order that those documents be part of the pleading.

Last December, in upholding Shaw’s decision, retired Mathews County Circuit Court Judge William H. Shaw III ordered the Eubanks to remove the additions they made to the house. At the time of the order, the Eubanks stated their intent to appeal the case, but online records for the Court of Appeals of Virginia and the Supreme Court of Virginia do not show an appeal on file.

*Edited to reflect that none of the $125,600 the county has spent in legal fees in matters involving the Eubanks was spent on the civil suit against the three county employees involved in the suit discussed in this article.