A lawyer for Spotsylvania County School Board members April Gillespie and Lisa Phelps is asking a circuit court judge to dismiss a $1 million lawsuit filed by fellow board member Nicole Cole, who alleges malicious prosecution in relation to an assault and battery charge last May.
Cole’s assault charge was dismissed in July, but she filed a lawsuit in November alleging that Phelps fabricated the claims and Gillespie lied to support the allegations.
Michael Sylvester of the Founding Freedoms Law Center in Richmond is representing Phelps and Gillespie. He said no trial date has been determined to hear Cole’s lawsuit.
Sylvester, Phelps and Gillespie declined further comment, but their response filed in Spotsylvania Circuit Court sheds light on their argument for dismissal.
Sylvester argues that malicious prosecution claims are not favored in Virginia, in part, because they discourage citizens from going forward with criminal prosecutions for fear of civil liability.
He said Cole must prove that the prosecution was malicious; instituted by or with cooperation from the defendants; without probable cause; and terminated in a manner not unfavorable to her.
“An elected official must show ‘actual malice’ that is knowing falsehood or recklessness as to the truth to proceed with a claim of malicious prosecution,” Sylvester argues.
Gillespie is claiming “absolute immunity” on Cole’s malicious prosecution allegation, arguing that “statements made in a judicial or quasi-judicial proceeding are privileged from all civil liability.”
Gillespie supported Phelps’ allegation that Cole slammed a door into her shoulder and extended her leg causing Phelps to trip during closed session of a May 20 board meeting. Gillespie was the lone witness to support Phelps’ claim. She later testified that she encouraged Phelps to file the assault charge the following morning and they went to the magistrate’s office together.
Cole denied the door-slamming allegation and said that Phelps walked into her foot while she was standing stationary.
“The defendants conspired to have Plaintiff charged with assault and battery in a concerted effort to harm her character, reputation, and standing in the local community and on the Spotsylvania County School Board,” Cole’s complaint states.
However, in addition to arguing that Gillespie is exempt from malicious prosecution, Sylvester said that she and Phelps “assert immunity” from defamation claims because Cole does not allege that they knew or should have known their statements were false or made with reckless disregard for whether they were false.
Phelps and Gillespie requested attorney fees based on having to defend the defamation claim.
“As for both defendants, Plaintiff alleged inadequate facts to show lack of probable cause or malice,” the response from Phelps and Gillespie states.
The pair’s lawyers go on to argue that Cole does not allege who fabricated the facts that led to her assault charge, and that her complaint does not establish any malice.
“A mere allegation that Plaintiff and Defendants ‘are adversaries on the school board’ and/or that ‘the board had well-documented dysfunction’ is inadequate to show malice as required under Virginia common law and U.S. and Virginia constitutional law,” the response states.
Cole, a Democrat, is now running for the 66th District seat in the House of Delegates, opposing longtime representative Del. Bobby Orrock (R-Spotsylvania). Her lawsuit claims that it would take at least $100,000 to repair her image and run an effective campaign.
Her lawsuit states that the “false charge, particularly a violent charge such as assault and battery, has caused significant reputational harm,” not only as a school board member, but as a member of the board of directors of a local non-profit organization and as the owner and operator of a financial services business.
In addition to malicious prosecution and defamation, Cole is suing for intentional infliction of emotional distress, statutory business conspiracy and common law civil conspiracy. Her Fredericksburg-based attorney, Joseph Kirchgessner requested a jury trial.
The defendants’ lawyers argue that the statutory business conspiracy claim should be dismissed because reputation, in this case, does not mean “personal reputation” or “employment interests.” They stated that any damaging claims against an individual would naturally damage their business or profession.
“Nearly every defamation action would fall within the statute’s ambit if we permitted such claims to proceed,” the response states.
The response also requests that the common law civil conspiracy claim be dismissed because Cole has not established that she’s suffered actual damages.
As for the claim of intentional infliction of emotional distress, the defendants’ lawyers state that there must be elements of intentional or reckless conduct; outrageous and intolerable conduct; a casual connection between the conduct and the emotional distress; and that the emotional distress was severe.
Cole said although the charge was dismissed, the case caused unseen harm to her mental state and reputation. She claims in her lawsuit that she spent funds on mental health treatment, stemming from anxiety dealing with the assault charge.
“Hurt feelings or bad manners are not enough to prove outrageous or intolerable conduct,” the lawyers for Phelps and Gillespie argue.
