Black v. Wade ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT C. BLACK,
Plaintiff-Appellant,
v.
No. 96-2774
WILLIAM PATRICK WADE; SOARING
EAGLE ENTERPRISES, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CA-96-799-A)
Submitted: September 16, 1997
Decided: October 28, 1997
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Carl Joseph Arbes, Alexandria, Virginia, for Appellant. John F.
McGinley, Jr., McGINLEY & ELSBERG, Alexandria, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert Black appeals from the district court's order granting sum-
mary judgment to the Defendants on his diversity action alleging
malicious prosecution and civil conspiracy. We affirm.
Black, a Virginia attorney, purchased a used storage trailer from
William Wade, owner of Soaring Eagle Enterprises, Inc., in February
1995. Black paid for the trailer with a check in the amount of $2250
and arranged for the trailer to be picked up a few days later. It is
undisputed that Wade removed three of the tires and replaced them
with three other tires prior to Black's retrieval of the trailer. Accord-
ing to Black, these tires were not roadworthy. Black then ordered his
bank to "stop payment" on the check.
Upon learning of the stop payment order, Wade requested, in writ-
ing, that Black either return the trailer or issue a replacement check.
When, after several such attempts, Wade received no response from
Black, he filed a complaint against Black with the Virginia State Bar
and filed criminal charges in Maryland against Black for theft. The
Bar complaint was ultimately dismissed.
Black was arrested in Virginia pursuant to a warrant issued by the
Baltimore district court. After issuing a replacement check for $2250
to Wade, however, the charges against him were "nolle prossed."
Black then initiated this action in the district court claiming that Wade
maliciously prosecuted him for theft and that Wade conspired to ruin
Black's legal career.
In Virginia, a cause of action for malicious prosecution requires
proof of four elements: "(1) that the prosecution was set on foot by
the defendant and that it terminated in a manner not unfavorable to
the plaintiff; (2) that it was instituted, or procured by the cooperation
of the defendant; (3) that it was without probable cause; and (4) that
it was malicious." Bain v. Phillips, 228 S.E.2d 576, 581 (Va. 1976).
Our review of the record discloses that Black failed to establish all
four of these elements. Moreover, Black has failed to provide a tran-
2
script of the district court's hearing on the summary judgment motion
and we are, therefore, unable to address his claims challenging that
ruling. See Fed. R. App. P. 10(b)(2); Powell v. Estelle, 959 F.2d 22,
26 (5th Cir. 1992).
Black's civil conspiracy claim is based on his assertion that Wade
conspired with the Virginia State Bar and the Maryland magistrate
who issued the arrest warrant to destroy Black's law practice. We find
this claim also unsupported by the record because Black was unable
to show either criminal or unlawful means or purpose with respect to
Wade's actions. See Hechler Chevrolet, Inc. v. General Motors Corp.,
337 S.E.2d 744, 748 (Va. 1985) ("A civil conspiracy is a combination
of two or more persons, by some concerted action, to accomplish
some criminal or unlawful purpose, or to accomplish some purpose,
not in itself criminal or unlawful, by criminal or unlawful means.").
Again, Black's failure to provide a transcript has rendered it impossi-
ble to address his challenges to the district court's ruling.
Accordingly, we affirm the district court's order granting summary
judgment to Wade and Soaring Eagle. The Appellees have filed a
motion for sanctions pursuant to Fed. R. App. P. 38 for filing a frivo-
lous appeal. The motion is hereby denied. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3