O'CONNOR v. Tice
704 S.E.2d 572
Va.2011Background
- In 2006, O'Connors purchased a commercial building and began renovations for a restaurant and surveying business.
- They hired Tice's company, T & N Painting, to paint for $6,872 and paid an advance of $2,290.67.
- Disputes over roof damage and prep work arose; O'Connors claimed significant damage and that Tice abandoned work.
- On Sept. 29, 2006, O'Connors filed a warrant in debt against Tice for the deposit and damages, but service issues and incorrect addresses delayed proceedings.
- Dublin County sheriff's deputy Darby advised possible construction fraud after reviewing the materials; a 15-day letter demanding return of funds was sent, warning of criminal charges if unpaid.
- After receiving the letter, Tice's attorney advised on correct address; the O'Connors provided information to Darby, who sought charges, leading to a criminal warrant issued Nov. 21, 2006.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the O'Connors initiated the prosecution without probable cause | O'Connors merely cooperated with law enforcement | O'Connors initiated by writing the 15-day letter and handing information to Darby | O'Connors initiated the prosecution |
| Probable cause to initiate construction fraud prosecution existed | Multiple officials found probable cause based on information | Evidence disputed; no probable cause as to Tice's fraud | Probable cause did not exist; jury could find no probable cause |
Key Cases Cited
- Reilly v. Shepherd, 273 Va. 728 (2007) (malicious prosecution elements; probable cause threshold)
- Ayyildiz v. Kidd, 220 Va. 1080 (1980) (malicious prosecution standard and intent)
- Lee v. Southland Corp., 219 Va. 23 (1978) (prosecution for debt collection; improper purpose)
- Andrews v. Ring, 266 Va. 311 (2003) (advice of counsel defense in malicious prosecution)
- Pallas v. Zaharopoulos, 219 Va. 751 (1979) (advice of counsel framework and safeguards)
- Bill Edwards Oldsmobile, Inc. v. Carey, 219 Va. 90 (1978) (probable cause assessment in malicious prosecution)
- American Ry. Express Co. v. Stephens, 148 Va. 1 (1927) (early probable cause considerations)