In the appeal regarding a malicious prosecution claim, the court examines whether the evidence was adequate to support the jury's verdict that the defendants initiated a criminal prosecution against the O’Connors without probable cause. The O’Connors purchased a commercial property in Lottsburg in 2006 and hired T. N Painting, owned by James C. Tice, to paint the building. After delays due to rain and roof repairs, a dispute arose when Mrs. O’Connor found damage to the roof, which they attributed to Tice's work. Tice denied causing the damage during a phone conversation with Mr. O’Connor, who subsequently insisted that Tice stop work. The O’Connors later filed a warrant in debt to recover their deposit and damages but mistakenly listed Tice's address, leading to a dismissal of their case. They were advised to seek Tice's correct address from the Northumberland County Sheriff’s Office, where they interacted with Sheriff’s Deputy Anthony Darby.
The O’Connors provided Darby with a comprehensive packet containing Tice's estimate, work photographs, a warrant in debt, a daily timeline of work, and Tice’s business card. They informed Darby that they had partially paid Tice for incomplete work but did not mention that Tice had finished any part of the job. Darby indicated that Tice might have committed construction fraud and advised the O’Connors to send a certified letter demanding the return of their deposit within 15 days, as mandated by the construction fraud statute (Code § 18.2-200.1).
On October 19, 2006, the O’Connors sent the letter to Tice, requesting the return of $3,345.67 for the deposit, roof damage, and court costs, warning of potential criminal charges for construction fraud if not resolved. Tice consulted his attorney, Paul Christian Stamm, who contacted Mr. O’Connor, provided Tice's correct address, and stated that it was a civil matter, not a criminal one. The O’Connors failed to inform Darby about this conversation and turned over their correspondence and materials at the end of the 15-day period. Darby, unaware of the developments, sought a warrant from Commonwealth’s Attorney McKenney, who found probable cause for arresting Tice for construction fraud. A warrant was issued on November 21, 2006, and Tice was arrested the following day.
During a preliminary hearing on January 22, 2007, Tice's counsel successfully moved to strike the evidence, resulting in the case's dismissal for lack of probable cause. On January 23, 2008, Tice filed a malicious prosecution claim against the O’Connors and Darby. Darby settled before trial, but the case against the O’Connors continued, culminating in a jury awarding Tice $200,000 in compensatory damages. The O’Connors subsequently moved for judgment notwithstanding the verdict, arguing they had probable cause and did not initiate the prosecution. The circuit court denied their motion, citing disputed facts suitable for jury resolution. The O’Connors were granted an appeal. In Virginia, malicious prosecution claims stemming from criminal proceedings are subject to stricter standards than typical tort cases.
In the case of Reilly v. Shepherd and related precedents, it is established that criminal prosecutions are vital for societal order, and individuals should not hesitate to pursue such actions due to fear of subsequent civil suits. To succeed in a malicious prosecution claim, Tice must demonstrate four elements: (1) malice, (2) involvement of the O’Connors in the prosecution, (3) absence of probable cause, and (4) a favorable termination of the prosecution for Tice. The appeal focuses on the O’Connors' argument that there was insufficient evidence for the jury to conclude that they lacked probable cause or that they initiated the prosecution.
The O’Connors contended their role was limited to assisting law enforcement and that Darby was the primary actor in raising the issue of construction fraud. They claimed their actions, such as writing a 15-day letter, did not equate to initiating prosecution. However, Tice countered that the O’Connors’ actions, including the 15-day letter threatening criminal charges if he did not comply, indicated their direct involvement in initiating the prosecution. Testimony from Darby supported Tice's claim that he would not have pursued charges without the O’Connors' involvement.
The court agreed with Tice, finding that by threatening criminal action to collect a civil debt, the O’Connors misused the criminal process, which constituted malice. The evidence showed that the O’Connors indeed initiated the prosecution, contradicting their assertion of mere cooperation. Regarding probable cause, it is defined as having sufficient facts to reasonably believe the plaintiff is guilty of the alleged crime.
Probable cause for initiating criminal charges is assessed at the time the action is taken. If there are disputes regarding the facts pertinent to probable cause, it becomes a factual issue for the jury. To establish construction fraud, intent to defraud must be present when money is received. The O’Connors assert that three law enforcement officials independently found probable cause against Tice, including McKenney, who decided to prosecute. However, their determination relied solely on information from the O’Connors. The O’Connors attempted to invoke an advice of counsel defense, which was deemed inapplicable since they did not fully disclose relevant facts to Darby, their advisor. The defense requires a complete and honest disclosure of all material facts, and the lack of such disclosure means reasonable minds could differ on its establishment. Testimonies conflicted regarding the amount of work Tice performed, leading to the jury reasonably inferring that the O’Connors lacked probable cause to believe Tice committed fraud. The jury's conclusion that the O’Connors initiated prosecution without probable cause is supported by sufficient evidence, resulting in the affirmation of the circuit court's judgment.
