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before the commencement of Cline’s trial, and two additional intervening causes after the trial
commenced that led it to determine that probable cause had been established as a matter of law.8
Because appellees’ pleas in bar do not attack the point at which Officer Riley swore out
the warrants—which is the basis of Cline’s complaint—but are based on subsequent findings of
probable cause and are supported with new evidence, appellees’ pleas in bar are special, not
general, pleas in bar. 1 Friend, supra, § 8.01-4. And because the existence of probable cause
operates as a bar to a malicious prosecution case, the circuit court did not err in finding the
litigation had been reduced to this single issue. Therefore, because appellees permissibly and
successfully availed themselves of special pleas in bar, the circuit court did not err by dismissing
Cline’s complaint.
IV. The circuit court permissibly granted the appellees’ pleas in bar based on intervening
findings of probable cause.
Cline argues that the Virginia Supreme Court has rejected the theory of superseding and
intervening findings of probable cause as an affirmative defense to malicious prosecution and
cites to O’Connor v. Tice, 281 Va. 1 (2011), to support this contention. We disagree with
Cline’s reading of O’Connor as well as her argument. We also find that federal case law, based
on Virginia malicious prosecution actions, provides a strong basis for the use of superseding and
intervening findings of probable cause as an affirmative defense.
A. The Supreme Court of Virginia did not reject the theory of intervening and superseding
findings of probable cause as an affirmative defense to malicious prosecution in O’Connor.
O’Connor involved a dispute between the O’Connors, the owners of a commercial
building, and Tice, the owner of a painting business. Id. at 4. The O’Connors were dissatisfied
with Tice’s work, which was a third of the way completed, and fired him. Id. at 4-5. The
8 Whether “[the plaintiff]’s assertion that [the defendant] lacked probable cause to seek a
warrant for [the plaintiff]’s arrest is a legal conclusion, not a statement of fact.” Lewis v. Kei,
281 Va. 715, 723 (2011). Jump to an indexed page (13 of 13)