Present: All the Justices 

JAMES P. O’CONNOR, ET AL. 

 OPINION BY 

v. Record No. 091941 JUSTICE LAWRENCE L. KOONTZ, JR. 

 January 13, 2011 

JAMES C. TICE 

FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY 

E. Preston Grissom, Jr., Judge 

 In this appeal of a judgment entered in favor of the 

plaintiff in a malicious prosecution action, we consider 

whether the evidence was sufficient to support the jury’s 

verdict. In doing so, we focus on whether the defendants 

initiated a criminal prosecution against the plaintiff without 

probable cause. 

BACKGROUND 

 In 2006, James P. O’Connor and Vickie L. O’Connor, 

through their closely-held limited liability company Viocon 

Enterprises, LLC (collectively “the O’Connors”), purchased a 

commercial building in Lottsburg. In April of that year, the 

O’Connors began renovating the building in anticipation of 

opening a restaurant and housing Mr. O’Connor’s surveying 

business. Following two unsuccessful attempts to hire a 

suitable painter, the O’Connors hired James C. Tice’s 

business, T & N Painting, to paint the exterior of their 

building for $6,872. 
 After receiving a one-third advance of $2,290.67, Tice 

was supposed to start work on June 5, 2006. However, because 

of rain, Tice and his crew did not begin working until June 6, 

2006. It rained off and on during the time they were on the 

job. At one point, the flat roof on the right side of the 

building sustained storm damage. Because Tice and his crew 

had to stand on that roof to paint a portion of the second 

story of the building, repairs to the roof prevented them from 

working for a few days. When the repairs to the roof were 

complete, Tice’s employees resumed their work and placed down 

“walk boards,” drop cloths and tarps, and wore soft-soled 

tennis shoes while working from the roof. According to Tice, 

the roof was in “perfect shape” the last time they worked on 

the building. 

 On June 19, 2006, Mrs. O’Connor discovered “gouges and 

footprints in the new roof.” The next day, Mr. O’Connor 

called Tice and left a message for him to stop work 

immediately and not to come back to the job because Tice had 

damaged the roof. A few days later, when Tice and Mr. 

O’Connor talked on the telephone, Tice denied Mr. O’Connor’s 

accusation that he had damaged the roof. In an effort to 

“calm [Mr. O’Connor] down,” Tice proposed that since he had 

performed more than one-third of the work, he would keep his 

advance and they would “part amicably.” According to Tice, 

2
Mr. O’Connor replied “fine” and hung up. The O’Connors 

testified that they did not agree to those terms. According 

to them, Tice denied damaging the roof and told Mr. O’Connor 

that he was keeping his deposit and quitting the job. 

 Due to weather and roof repair delays, Tice and his crew 

were only able to work on the building for five days in a twoweek span. During that time, Tice bought materials for the 

job, including paint remover, sanding pads, and primer. Tice 

and his crew used these materials to strip, sand, and prime 

the building for painting. In total, Tice estimated that he 

completed 75% of the “prep work,” which was 60-65% of the 

entire job. Mrs. O’Connor, on the other hand, testified that 

Tice completed roughly 20% of the job. And Mr. O’Connor 

testified that Tice only finished about 5% of the job. 

 On September 29, 2006, the O’Connors filed a warrant in 

debt against Tice in the Lancaster County General District 

Court seeking to recover their deposit and money for damage 

done to the roof. The O’Connors, however, listed the wrong 

address for Tice on the warrant in debt. When the case 

subsequently was dismissed for no service, the presiding judge 

recommended that the O’Connors go to the Lancaster County 

Sheriff’s Office to obtain Tice’s correct address. The 

O’Connors went there and were told that because their building 

was located in Northumberland County they should go to the 

3
Northumberland County Sheriff’s Office to obtain Tice’s 

address. 

 At the Northumberland County Sheriff’s Office, the 

O’Connors asked to “speak to someone about serving a warrant 

in debt or getting an address.” They were introduced to 

Sheriff’s Deputy Anthony Darby. The O’Connors gave Darby 

their “whole packet,” which included Tice’s written estimate, 

photographs of the work done, the warrant in debt, a timeline 

of their recollection of the work performed each day, and 

Tice’s business card. The O’Connors explained that they had 

paid Tice a partial amount for an unfinished job, but they 

never discussed with Darby that Tice had completed a portion 

of that job. Based on the information presented to him, Darby 

told the O’Connors that it looked like Tice may have committed 

construction fraud. Darby then told them that he would find 

Tice’s correct address and that if they wished to pursue a 

criminal prosecution for construction fraud they needed to 

send a certified letter to Tice demanding return of the 

deposit within 15 days of receipt as required by the 

construction fraud statute. See Code § 18.2-200.1. 

 On October 19, 2006, the O’Connors sent the “15-day 

letter” to Tice, informing him that they attempted to serve a 

warrant in debt against him, but were unsuccessful because the 

address they had for him did not exist. The letter further 

4
demanded that he return the $2,290.67 deposit and pay an 

additional $1000 for roof damage and $55 for court costs. The 

letter then provided, “If we do not receive the debt of 

$3,345.67 within 15 days of this letter we will file a 

criminal complaint for construction fraud in Northumberland 

County.” 

 Upon receiving the letter, Tice took it to his attorney, 

Paul Christian Stamm, Jr. Stamm called Mr. O’Connor and 

informed him that Tice had received the letter. Stamm gave 

Mr. O’Connor Tice’s correct address and told him that Tice 

could be served with a warrant in debt at that address or at 

Stamm’s office. Stamm then sent a letter to the O’Connors on 

November 3, 2006, which also informed them of Tice’s correct 

address and explained that a warrant in debt could be served 

at that address or at Stamm’s office. In the letter, Stamm 

wrote, “[i]t appears to me that this is a civil matter and not 

a criminal matter.” 

 The O’Connors turned over their certified letter, the 

mail receipt, and their materials to Darby at the end of the 

15-day period without telling Darby of Mr. Connor’s phone 

conversation with Stamm or about Stamm’s letter. Darby, who 

testified that he would not have sought criminal charges 

against Tice if the O’Connors had not come back to him after 

the 15-day period, took their information to then5
Commonwealth’s Attorney R. Michael McKenney to see if there 

was enough information to obtain a warrant. McKenney 

concluded that the information presented to him constituted 

probable cause to believe that Tice had committed construction 

fraud. 

 Darby then presented to the magistrate the information 

the O’Connors had provided him. On November 21, 2006, the 

magistrate issued a warrant for Tice’s arrest, charging him 

with construction fraud in violation of Code § 18.2-200.1. 

Tice was arrested the next day. 

 On January 22, 2007, a preliminary hearing on the 

criminal warrant was held in the Northumberland County General 

District Court. At the end of the Commonwealth’s case-inchief, Tice’s counsel moved to strike the evidence. The judge 

granted the motion and dismissed the case for lack of probable 

cause. 

 On January 23, 2008, Tice filed in the Circuit Court of 

Northumberland County a malicious prosecution action against 

the O’Connors and Darby. Darby settled with Tice prior to 

trial and was dismissed from the case. 

 The case proceeded to trial against the O’Connors with 

the jury returning a verdict for Tice in the amount of 

6
$200,000 in compensatory damages.1 Thereafter, the O’Connors 

made a motion for judgment notwithstanding the jury’s verdict 

on the grounds that as a matter of law they had probable cause 

to believe that Tice committed construction fraud, and 

additionally that there was insufficient evidence that they 

initiated the prosecution of Tice. Following a hearing, the 

circuit court denied the motion, finding that the facts with 

respect to these issues were in dispute and were therefore 

questions for the jury. We awarded the O’Connors this appeal. 

DISCUSSION 

 Malicious prosecution actions arising from criminal 

proceedings are not favored in Virginia and the requirements 

for maintaining such actions are more stringent than those 

applied to other tort cases. Reilly v. Shepherd, 273 Va. 728, 

733, 643 S.E.2d 216, 218 (2007); Ayyildiz v. Kidd, 220 Va. 

1080, 1082, 266 S.E.2d 108, 110 (1980); Lee v. Southland 

Corp., 219 Va. 23, 26, 244 S.E.2d 756, 758 (1978). The reason 

for this disfavor is that criminal prosecutions are essential 

for maintaining an orderly society and people should not be 

discouraged from bringing such actions out of fear of 

subsequent civil proceedings against them. Reilly, 273 Va. at 

 1

 The O’Connors made a post-trial motion pursuant to Code 

§ 8.01-35.1 for the circuit court to reduce the jury’s verdict 

by $15,000, the amount for which Darby settled with Tice 

before trial. The court granted this motion and entered 

judgment against the O’Connors in the amount of $185,000. 

7
733, 643 S.E.2d at 218-19; Ayyildiz, 220 Va. at 1082-83, 266 

S.E.2d at 110-11; Lee, 219 Va. at 26, 244 S.E.2d at 758. 

 To prevail in a malicious prosecution action, Tice had to 

prove by a preponderance of the evidence that the prosecution 

was (1) malicious, (2) instituted by or with the cooperation 

of the O’Connors, (3) without probable cause, and (4) 

terminated in a manner not unfavorable to him. Reilly, 273 

Va. at 732, 643 S.E.2d at 218; Baker v. Elmendorf, 271 Va. 

474, 476, 628 S.E.2d 358, 359 (2006). The first and fourth of 

these elements are not at issue in this appeal. Rather, the 

O’Connors contend that the evidence was insufficient as a 

matter of law for the jury to find that probable cause to 

believe that Tice committed construction fraud did not exist 

at the time the criminal warrant was issued. The O’Connors 

further contend that the evidence was insufficient as a matter 

of law for the jury to find that the O’Connors initiated the 

prosecution of Tice. As a threshold matter, we will address 

this latter contention first. 

 The O’Connors assert that they merely assisted and 

cooperated with law enforcement in the investigation of Tice 

for construction fraud. They maintain that it was Darby who 

first “raised the specter” of construction fraud, it was Darby 

who advised them to write the 15-day letter to Tice, and it 

was Darby who after receiving the 15-day letter return receipt 

8
took control of the criminal prosecution by seeking the advice 

of McKenney and obtaining the issuance of the criminal 

warrant. The O’Connors assert that their only involvement was 

reporting suspected wrongdoing and appearing as witnesses at 

Tice’s preliminary hearing. They argue that this type of 

involvement cannot constitute “initiating” a criminal 

prosecution as a matter of law. 

 Tice acknowledges that Darby may have “initially raised 

the specter of a criminal charge for construction fraud 

against Tice,” but the O’Connors were the ones who executed 

the 15-day letter containing a clear warning that they would 

file “a criminal complaint for construction fraud” if Tice 

failed to comply. Tice points out that after the 15-day 

period had expired, the O’Connors, despite having Tice’s 

correct address to serve a warrant in debt, decided instead to 

turn over their information to Darby with the understanding he 

would seek criminal charges against Tice. Moreover, Darby 

testified that he would not have sought criminal charges 

against Tice if the O’Connors had not come back to him after 

the 15-day period. Tice argues that these circumstances 

clearly show that the O’Connors initiated the prosecution of 

Tice. We agree. 

 By writing the 15-day letter, warning Tice of criminal 

consequences should he fail to pay them the money they had 

9
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.”) We find no merit to the 

O’Connors’ contention that they were “merely” cooperating in a 

criminal investigation. They unmistakably authorized Darby to 

proceed criminally against Tice, providing him with all the 

information used to obtain the issuance of the criminal 

warrant. We therefore hold that the evidence was sufficient 

for the jury to find that the O’Connors initiated the 

prosecution of Tice. 

 Turning now to the issue of probable cause, in the 

context of a malicious prosecution action, probable cause is 

defined as knowledge of such facts and circumstances to raise 

the belief in a reasonable mind, acting on those facts and 

circumstances, that the plaintiff is guilty of the crime of 

which he is suspected. Reilly, 273 Va. at 733, 643 S.E.2d at 

219; Commissary Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586, 

589-90, 594 S.E.2d 915, 917 (2004); Stanley v. Webber, 260 Va. 

90, 95-96, 531 S.E.2d 311, 314 (2000). Whether probable cause 

existed is determined at the time the defendant took the 

10
action initiating the criminal charges. Reilly, 273 Va. at 

733, 643 S.E.2d at 219; Mziguir, 267 Va. at 590, 594 S.E.2d at 

917; Stanley, 260 Va. at 96, 531 S.E.2d at 314-15. When the 

facts relating to the question of probable cause are in 

dispute, the issue is one of fact to be resolved by the trier 

of fact. Stanley, 260 Va. at 96, 531 S.E.2d at 315; Lee, 219 

Va. at 27, 244 S.E.2d at 759; Brodie v. Huck, 187 Va. 485, 

488, 47 S.E.2d 310, 312 (1948). 

 To be guilty of construction fraud, the defendant must 

have the intent to defraud at the time the advance of money is 

received. See Bottoms v. Commonwealth, 281 Va. ___, ___, ___ 

S.E.2d ___, ___ (2011) (this day decided). As evidence of 

probable cause to believe that Tice committed construction 

fraud as a matter of law, the O’Connors point to “three 

separate law enforcement officials” – McKenney, the 

magistrate, and Elizabeth A. Trible, the Assistant 

Commonwealth Attorney assigned to prosecute the case – who 

independently concluded that probable cause existed. 

Additionally, since McKenney made the decision to prosecute 

Tice, and Darby, acting on the advice of McKenney, obtained 

the issuance of the criminal warrant, the O’Connors argue that 

this Court must find that probable cause to initiate the 

prosecution existed as a matter of law. 

11
 The determinations of probable cause by McKenney and the 

magistrate were based exclusively on the information Darby 

received from the O’Connors.2 In attempting to rely on these 

determinations as evidence of probable cause as a matter of 

law, the O’Connors seem to suggest an “advice of counsel 

defense.” That defense is not applicable in this case since 

the O’Connors only spoke to Darby, and McKenney was not acting 

as the O’Connors’ attorney when he made his determination of 

probable cause. Even if the defense were available, it would 

not have been established in this case as a matter of law. 

 We have said the following about the advice of counsel 

defense in malicious prosecution actions: 

“[W]hen a defendant, in initiating a prosecution, 

acts in good faith upon the advice of reputable 

counsel, after a full disclosure of all material 

facts, he has probable cause to support his action. 

Probable cause serves as a complete defense to an 

action for malicious prosecution, even if the advice 

given by the attorney is wrong. The defendant must 

prove that he sought advice of counsel with an 

honest purpose of being informed of the law, that he 

made a full, correct and honest disclosure of all 

material facts known to him or which he should 

reasonably have known, and that he acted in good 

faith guided by the advice given by counsel. This 

 2

 We will not consider the O’Connors’ attempt to rely on 

the determinations made by Trible. The jury was properly 

instructed that it “shall consider the facts and circumstances 

as they appeared to the defendants at the time the criminal 

proceedings were instituted by the issuance of the criminal 

warrant.” Thus, any determinations following the issuance of 

the warrant were not relevant to whether the O’Connors had 

probable cause to believe that Tice committed construction 

fraud. 

12
defense usually presents a jury question unless 

reasonable minds cannot differ that advice of 

counsel has been established.” 

Andrews v. Ring, 266 Va. 311, 322, 585 S.E.2d 780, 786 (2003) 

(quoting Pallas v. Zaharopoulos, 219 Va. 751, 755, 250 S.E.2d 

357, 359-60 (1979)) (emphasis added). Here, the O’Connors 

never informed Darby that they had been in contact with Tice’s 

attorney prior to the issuance of the criminal warrant and 

that this attorney had suggested to them that the dispute was 

civil in nature. The O’Connors also never discussed with 

Darby that Tice had completed a portion of the job. Thus, we 

cannot say that the O’Connors would have established an advice 

of counsel defense as a matter of law because reasonable minds 

could differ on whether they “made a full, correct and honest 

disclosure of all material facts.” 

 Having concluded that the O’Connors initiated the 

criminal prosecution of Tice, the issue remains whether the 

O’Connors had probable cause to initiate the prosecution. 

Unlike the cases relied upon by the O’Connors on brief, the 

evidence in the present case was in dispute as to whether the 

O’Connors had probable cause to believe that Tice committed 

construction fraud. See Bill Edwards Oldsmobile, Inc. v. 

Carey, 219 Va. 90, 99, 244 S.E.2d 767, 773 (1978); American 

Ry. Express Co. v. Stephens, 148 Va. 1, 17-19, 138 S.E. 496, 

501-02 (1927). Tice testified that since the parties could 

13
not agree on who damaged the O’Connors’ roof, and because Tice 

had performed more than one-third of the work on the contract, 

Mr. O’Connor agreed with Tice’s proposal to keep his deposit 

and leave the job. Conversely, the O’Connors testified that 

Tice quit the job after performing very little of the work. 

 The jury could reasonably infer from this conflicting 

testimony that Tice intended to fulfill his contract 

obligations and that the “knowledge of such facts and 

circumstances” by the O’Connors did not “raise the belief in a 

reasonable mind” that Tice defrauded them. We therefore hold 

that the evidence was sufficient for the jury to find that the 

O’Connors did not have probable cause to believe that Tice 

committed construction fraud. 

CONCLUSION 

 For these reasons, we hold that the evidence was 

sufficient to support the jury’s determination that the 

O’Connors initiated a criminal prosecution against Tice 

without probable cause. Accordingly, the judgment of the 

circuit court will be affirmed. 

Affirmed. 

14