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O’Connors informed Tice of their intent to file a criminal complaint for construction fraud
against him. Id. at 6. The O’Connors withheld from the local sheriff’s deputy that Tice had
already completed part of the work and that Tice’s attorney had contacted them. Id. at 10.
Based on the O’Connors’ information, the sheriff’s deputy swore out a warrant for Tice’s arrest,
which was issued by a magistrate, and led to a preliminary hearing. Id. at 6. At the hearing, the
general district court granted Tice’s motion to strike the evidence and dismissed the case for a
lack of probable cause. Id. at 6-7.
Tice instituted a malicious prosecution action against the O’Connors, and the Supreme
Court construed the O’Connors’ argument as presenting an “advice of counsel defense” in
“attempting to rely on [the previous] determinations as evidence of probable cause.” Id. at 10.
After explaining that a defendant must have “made a full, correct and honest disclosure of all
material facts” to avail himself of this defense, the Court found that the O’Connors’ defense
failed because there was a reasonable question as to whether they withheld material facts from
the sheriff’s deputy. Id. at 10-11 (quoting Andrews v. Ring, 266 Va. 311, 322 (2003)).
Here, Cline argues that the Court in O’Connor “reject[ed] this ‘superseding act’
supposition” by pointing out the O’Connors’ flawed reliance on the probable cause findings by
an advising Commonwealth’s attorney, the prosecuting Commonwealth’s attorney, and the
magistrate. Cline emphasizes how these decision makers relied on the incomplete factual
recitation by the O’Connors. Cline analogizes the O’Connors’ actions to Officer Riley’s alleged
omission of L.C.’s mental health issues and past sexual abuse allegations when swearing out the
warrants before the magistrate. Jump to an indexed page (13 of 13)