ANALYSIS OF OCTOBER 14, 2021 SUPREME COURT OPINIONS

(Posted October 14, 2021) For those of us who follow appellate decisions, a long drought ends today as the Supreme Court of Virginia hands down its first published opinions in six weeks.

Torts

The justices take up several dirt-law claims in Givago Growth, LLC v. iTech AG, LLC, from Fairfax County. It’s a suit by an LLC that owns land up there, filed against a lender that sued and slapped a lis pendens notice in the local land records.

When the plaintiff in that action nonsuited and withdrew the lis pendens, the property owner sued the lender for a host of claims: malicious abuse of process, slander of title, tortious interference with contract, and civil conspiracy. The lender demurred, claiming that the lis pendens was entitled to the absolute privilege that protects assertions made in the course of litigation.

The learned judge considered this argument, and agreed with the lender. He dismissed the action with prejudice. A Supreme Court writ panel decided to take up the issue.

Today’s opinion, written by Justice Mims, first addresses the propriety of a court’s deciding a defense like privilege on demurrer. The court rules that that’s improper, as affirmative defenses have to be raised by pleas or an answer. While that might have been the end of today’s decision, the court goes on to examine the merits of the defense.

If you find that unusual, I agree with you. By evaluating an affirmative defense that has yet to be properly raised, the court issues something that looks a lot like an advisory opinion. But it’s entirely foreseeable to me that the circuit court will eventually have to make this call, so the justices decided to weigh in on it in the interest of judicial economy. After all, there’s no need to make the parties try the case, only to come back to the appellate courts (it would be the CAV by then) to get a legal ruling on an issue that the parties have already framed well.

Today’s opinion analogizes this situation to the filing of a mechanic’s lien. Both that lien and a lis pendens are ancillary to the main object of the litigation. They serve to notify potential purchasers that the plaintiff has a claim against the subject property, thereby protecting the person or entity who asserts that claim. The justices note that prior caselaw has protected a mechanic’s lienor from defamation liability by the privilege defense.

At this point, it looks like the Robes are about to hand the lender a delayed-onset victory. But then we see this paragraph:

However, the circuit court went further and held that the defense of absolute privilege applies to all four causes of action alleged in the petitioners’ complaint: slander of title, malicious abuse of process, tortious interference with contractual relations, and civil conspiracy. This Court has never extended this defense to non-defamation torts, such as the latter three listed above, and we decline the invitation to do so today.

The court thus rules that while the privilege defense may bar an action for slander of title, it won’t apply to the other three, non-defamation claims.

Okay, now it looks like the slander claim is going down (eventually), and the other three will proceed at least through the pleading stage. But wait; there’s more! Justice Mims then adds that even the absolute pleading privilege is subject to a requirement of relevancy. If the allegations in the lis pendens are “palpably wanting in relation to the subject matter of the controversy” as to make them irrelevant or improper, then the property owner can fend off the privilege defense.

I learned long ago that merely having a monetary claim against John Q. Defendant isn’t enough to warrant the filing of a lis pendens against his property; that requires a claim to ownership of that specific property. That might be the reason why Justice Mims adds this ominous language at the end of today’s discussion: “we note that the facts alleged in the complaint, if proven true, are concerning and may not satisfy even this ‘liberal rule’ regarding relevancy.” The justices thus remand the case so the circuit judge can make that evaluation.

Criminal law

The court takes up a certified question from the Fourth Circuit in White v. US. The appeal arises from a criminal prosecution in which the government managed to obtain an enhanced sentence under the Armed Career Criminal Act, successfully convincing the district judge that White had three prior violent felonies. That led to a significantly stiffer sentence than White would have received otherwise.

On appeal to the Fourth, White claimed that one of his three prior convictions, a Virginia proceeding for robbery, didn’t qualify as a violent felony. That argument led the Fourth to certify this question to the SCV: “Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?”

This issue likely triggers an I-thought-I’d-seen-it-all reaction. I had never heard of a robbery conviction for threatening to out someone. Extortion, maybe; but then, I don’t handle criminal litigation.

It turns out that the highest court in the Commonwealth has decided this issue on four previous occasions – once in 1890; the other three in the 1930s – and has always said that it’s possible to base a robbery conviction on this precise threat. Who knew?

Well, White’s lawyers knew, for one. They raised the issue that physical force – the predicate act of violence for an ACCA sentence enhancement – isn’t always necessary for a robbery conviction. If White is right, he should be entitled to a new sentencing, and a shorter stay as the guest of the Attorney General of the United States.

Justice Kelsey authors today’s opinion, I found it to be one part appellate ruling and about eight parts legal history lesson. Another jurist would have cited the four SCV opinions and let it rest there; a nice, short opinion that’s beloved by working-class scribes like me. But Justice Kelsey wanted to firmly establish the precedent, so he examines English common law decisions stretching back into history. He cites numerous English opinions, all finding this precise exception to the physical-force requirement.

With this line of caselaw, the only thing that can interrupt it is legislation. The General Assembly, in its wisdom, has declined to step in and abolish this exception, so the court answers the certified question in the affirmative. That’s a victory for White.

This ruling isn’t entirely unanimous. Two members of the court – Justice Mims and Powell, can’t stomach the labyrinth of English legal history, so they file a short concurrence, based on the four SCV decisions already in Virginia Reports.

I’m of two minds about this. Like Justice Kelsey, I appreciate legal history. I’m always interested in an exposition on a subject of which I’m ill-informed. But this was a remarkable, extensive digression that, in my view, really wasn’t necessary to decide the certified question. It reminds me of another digression, this one from one of my three favorite novels, Les Misérables by Victor Hugo. The book is ponderous at roughly 1,200 pages, though I love it anyway.

In the novel, Hugo spends 100 pages describing the Battle of Waterloo. The sole story-based purpose for this overlong detour is to make the point that a really-really good guy mistakenly believes that a really-really bad guy is actually really-really good. (He isn’t. Sorry if I spoiled the novel for you.) The real purpose, I suspect, was for Hugo to express his patriotism and his admiration for Napoleon Bonaparte. The battle occurred when Hugo was 13 years old, and it must have shaped his views of what it meant to be a Frenchman.

Enough speculation; I can’t offer an informed view on why Justice Kelsey took us on this long tour into Eighteenth Century England. But the answer to the Fourth’s certified question is now chiseled deeply in the annals of our jurisprudence.