Benjamin

CHARLESTON – James Higginbotham proved he didn't steal old rails but he didn't prove Norfolk Southern Railway controlled a Kanawha County prosecutor who indicted him, the Supreme Court of Appeals decided.

The Justices on Nov. 23 reversed a $420,000 judgment that Mason Circuit Judge David Nibert entered on a jury verdict for Higginbotham, and they ordered a new trial.

They ruled that Nibert acted prematurely when he found it undisputed that Norfolk Southern procured Higginbotham's prosecution "plain and simple."

The Justices ruled he should have left that for jurors to decide.

Nibert left no jury issues but probable cause and malice, and jurors found both.

According to Justice Brent Benjamin, Nibert didn't explain what he believed to be the ordinary meaning of procurement.

Benjamin wrote that in a malicious prosecution case, procurement requires more than submission of a case to a prosecutor.

It requires that a defendant assert control over pursuit of a prosecution, he wrote.

"The circuit court incorrectly found that there was no legally sufficient evidentiary basis for which they could have found that the petitioners had not procured the prosecution of the respondent," Benjamin wrote. "... It would be reasonable to find that the petitioners' control in the prosecution did not rise to the level of procurement."

He wrote that in 2000, scrap dealer Charles Chandler paid CSX employee Thomas Crawford cash for a document he knew Crawford had forged. It authorized removal of CSX rail in the Blue Creek area of Kanawha County.

Chandler presented the document to Higginbotham, a Norfolk Southern employee and part owner of a construction business that often bought rail. Higginbotham agreed to broker a $10,000 sale between Chandler and Florida rail dealer David Clark, for rail at 105 pounds per yard.

Clark paid Higginbotham $6,500, for inspecting the rail. Higginbotham paid Chandler $10,000 for a portion of rail at 127 pounds a yard.

When Chandler started removing rail, Norfolk Southern supervisor Mark Lonsinger heard that CSX sold it. Lonsinger relayed the report to division engineer Phillip Merilli, who believed Norfolk Southern owned the rail.

Merilli sent Lonsinger to Blue Creek, and Lonsinger found Chandler removing rail. Chandler presented Crawford's forgery to Lonsinger, who left and returned with special agent Charles Paxton of the Norfolk Southern police department.

Under West Virginia code, a governor commissions railroad police officers who carry the authority of deputy sheriffs.

When Paxton connected Chandler to Higginbotham, Lonsinger took Higginbotham out of service and called a hearing that resulted in his termination.

Arbitrators reinstated him in 2001.

Norfolk Southern took the case to assistant Kanawha County prosecutor Robert Schulenberg, who asked the railroad to continue gathering facts.

Two years later, when Schulenberg presented the case to grand jurors, a railroad police report incorrectly showed Higginbotham, not Chandler, dealt with Crawford.

Special agent James Farley, who had taken the case when Paxton retired, erroneously testified that Clark wrote a $10,000 check to Higginbotham for the rail.

Grand jurors indicted Clark, Crawford, and Higginbotham.

No one ever arrested Higginbotham, and a Kanawha County judge dismissed charges against all three men because the rail had been abandoned as a matter of law.

Higginbotham then sued Norfolk Southern in Mason County, for malicious prosecution.

At trial in 2007, Schulenberg testified that he chose to seek an indictment.

Higginbotham asked Nibert for judgment on procurement as a matter of law, and Norfolk Southern moved for complete judgment as a matter of law.

Nibert granted Higginbotham's motion, denied the railroad's motion, and instructed jurors that Norfolk Southern procured the prosecution.

Norfolk Southern moved for a new trial, and Nibert denied it last year. He wrote that the erroneous police report and Farley's testimony made it appear Higginbotham was guilty of theft and getting paid for it.

He wrote that Norfolk Southern intended to get Higginbotham indicted and convicted to take him off their payroll.

His ruling collapsed at the Supreme Court.

"Here, at the time the case was submitted to the assistant prosecutor, there was a question as to whether either the assistant prosecutor or the petitioners knew that the respondent did not knowingly participate in rail theft," Benjamin wrote. "There is also the testimony of the assistant prosecutor that he alone, after conducting an investigation, made the decision to seek an indictment against the respondent.

"The jury could have concluded that the petitioners believed the respondent was involved in stealing the rail in this case."

He wrote that reasonable minds could differ as to whether Norfolk Southern's involvement amounted to procurement.

"Stated differently, it is reasonable to conclude based upon the facts of this case that the decisions relating to prosecution were in the hands of the prosecution," he wrote.

He quoted a New Mexico Supreme Court decision that, "Efficient law enforcement requires that a private person who aids the police by giving honest, even if mistaken, information about crime, should be given effective protection from civil liability."

Scott Sheets, of Huddleston Bolen in Huntington, represented Norfolk Southern. So did James Whitehead, of Sidley Austin in Chicago.

Marvin Masters and David White, both of Charleston, represented Higginbotham.

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