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Cline v. Riley — Court of Appeals opinion, 1099-25-1

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- 8 - 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).
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