Virginia Supreme Court affirms jury verdict of $200,000 in malicious prosecution case

In O'Connor v. Tice, No. 091941 (Va. Jan. 13, 2011), the Court affirmed a jury verdict for malicious prosecution. The jury awarded $200,000 for malicious prosecution over a dispute concerning about $2300. The plaintiff was a contractor who had been hired to paint a commercial building, and was paid an advance of about $2300 to begin work. Subsequently, a dispute arose with the building's owner as to damage done to the roof during the work. The contractor said he was told not to come back, and the owner said that the contractor denied damaging the roof, and said he was quitting the job and keeping the deposit.

Subsequently, a county sheriff who had not been told that the contractor had completed a portion of the job, suggested that the contractor might have committed construction fraud. The owner subsequently pursued a construction fraud claim, despite being contacted by the contractor's attorney who suggested it was only a civil matter, and who provided the address where the contractor could be served with a warrant in debt. The owner brought a file to the county sheriff that did not include the letter from the contractor's attorney.

Subsequently, based on incomplete information, the county sheriff presented a criminal warrant of construction fraud to the magistrate, who found probable cause and issued a warrent for the contractor's arrest. The contractor was arrested the next day. At a preliminary hearing two months later, the criminal warrant was dismissed for lack of probable cause.

The following day, the contractor filed a malicious prosecution action against the sheriff and the owner. The case proceeded to trial against the owner, resulting in a $200,000 verdict for the contractor.

On appeal, the owner argued that the evidence was insufficient for the jury to find that probable cause did not exist, and that it was the sheriff who initiated the prosecution.

The owner argued that he only reported suspected wrongdoing and cooperated as a witness.

The Court rejected those arguments, stating:

By writing the 15-day letter, warning Tice of criminal consequences should he fail to pay them the money they had sought by their warrant in debt, the O'Connors clearly availed themselves of a criminal process in order to collect a civil debt. See Lee, 219 Va. at 27, 244 S.E.2d at 759 ("The institution of a criminal prosecution not for the purpose of bringing an offender to justice, but for the primary purpose of using it as a means to collect a debt, is for an improper purpose and therefore malicious.")

The Court held that the owner could not rely on the advice of counsel defense because reasonable minds could disagree whether the owner made a full, correct, and honest disclosure of all material facts.

Likewise, the Court found that the facts were disputed because the contractor testified that the parties could not agree on who damaged the owner's roof, that the contractor had performed more than one-third of the work on the contract, and that the owner agreed with the contractor's proposal to keep his deposit and leave the job. The jury could reasonably have concluded that the contractor had intended to fulfill his contract obligations and that the owner could not reasonably belief he had been defrauded.
Categories: Virginia