ONE UNPUBLISHED ORDER FROM SCV[Posted May 21, 2010] The Supreme Court has been clearing off the docket with a wonderful degree of efficiency since the April session. Today the court decided one more appeal by unpublished order, bringing to six the number of cases decided in advance of the June 11 opinion day. Those of us who read every published decision on opinion day, and post same-day essays, appreciate it when the court lightens our load in this way.
Today’s case of Williams v. Pintz involves claims of defamation and conspiracy brought by a real-estate agent. The court affirms the trial court’s decision to sustain the defendants’ demurrers, finding that the plaintiff didn’t plead “the exact words spoken or written” by the primary defendant. Those allegations are essential in defamation suits, so the defendant can defend against a fixed target. The court also finds that the business-conspiracy claims were properly dismissed because the interests affected were personal, not business-related.
This last ruling is a fairly close call, because the interest affected was the plaintiff’s real-estate license, which was suspended as a result of the allegedly defamatory statements. That’s the heart of his business, but the court finds that it states a claim that’s personal only, so the conspiracy statute doesn’t help him.
There is a vexing waiver issue in today’s order, one that has appeared before and will appear again. The trial court initially sustained a demurrer to two related claims (conspiracy to intentionally inflict emotional distress and conspiracy to commit abuse of process). The plaintiff filed amended pleadings in which he didn’t reassert those claims. On its face, Code §8.01-273(B) seems to permit a plaintiff to stand on his original pleading when he appeals the sustaining of a demurrer. But the court finds the struck issues to be waived for appellate review. That’s because, in order to take advantage of that saving clause, you must reassert the struck claim in your amended pleading, either by setting it out in full or by reference. The plaintiff didn’t do that here, so he loses these two claims by waiver.
If any of my readers would like a copy of this order, contact me and I’ll forward one to you.