The Supreme Court of Virginia livened up the lull between Christmas and New Year’s with an order vacating the preliminary injunction in Dietz Development, LLC v. Perez. Dietz has everything–First Amendment Issues, appellate procedure, and a sexy social media angle.


It’s probably the latter that first got Dietz into the Washington Post. In short, Perez, a homeowner, was dissatisfied with Dietz’s work as a contractor, so she posted negative reviews on the online forums Yelp and Angie’s List. She also accused the firm of invoicing her for work that it hadn’t done, and intimated that it may have been involved in stealing her jewelery.

Dietz sued for defamation and asked for an injunction directing Perez to remove the negative postings and preventing her from making similar statements in the future.

Dietz sought a preliminary injunction. The trial court heard evidence and issued an injunction directing Perez to remove or modify certain posts.


First Amendment.

This is going to get ugly.

And so it came to pass. Perez got some help from the ACLU and Public Citizen. She filed a petition for review on her behalf under Code Section 8.01-626, which basically allows immediate review of orders granting or denying an injunction. The statute says that petitions for review are directed to a single justice, but in practice they’re reviewed by panels of three justices.

Perez assembled a very persuasive petition for review, arguing principally that (1) the trial court’s ruling was a constitutionally impermissible prior restraint, and (2) equity will not enjoin a libel.

Perez filed her petition on December 26. Two days later, the Supreme Court of Virginia vacated the injunction. Think about that: two days, starting on the day after Christmas, to review the record, consider the law, and issue a ruling. As a person who’s colossally unproductive during the holidays (witness my blog output), I stand in awe.

Anyway, back to the action. Justices Lemons, Goodwyn, and Powell ruled that the circuit court’s order was defective because it did not specify the time during which the injunction would be effective, as required by Code Section 8.01-624. The Court also ruled that Dietz had an adequate remedy at law.

So what can we take away from Dietz?

1. What happened to Rules 5:17 and 5:25?

Well, for starters, the case raises an interesting preservation/waiver question. Perez herself did not argue that the trial court had failed to comply with 8.01-624. And Steve Emmert suggests that the error was not preserved below. The Court raised that issue all by itself.

To be clear, there’s nothing unusual about a court declining to reach a constitutional issue when a case can be decided on a narrower ground; that’s what courts are supposed to do.

But it’s very unusual to see the Supreme Court of Virginia reach an issue that was not preserved below, assigned as error, of even argued in an appellate brief. See Va. Sup. Ct. R. 5:17(c); Va. Sup. Ct. R. 5:25. The Court routinely tosses good cases for procedural defects on those grounds. (You might argue that Rule 5:17 applies to petitions for appeal while Perez filed a petition for review, but she still listed assignments or error–albeit defective ones that did not note where her errors had been preserved below–and she didn’t argue the 8.01-624 issue anywhere in her brief; that’s the traditional way to waive an argument.)

In fairness to the Court, this is an important case and one that touches on First Amendment rights central to our basic concepts of citizenship. But every case is important to the litigants involved, and procedural rules should apply equally across the board.

2. The Court was obviously correct.

That said, the Court’s substantive rulings were plainly correct. The trial court’s injunction was indefensible, and it’s unlikely that any departure from the Supreme Court’s preservation or waiver rules could have affected the outcome.

That’s because the Court’s second ground for its ruling–that Dietz has an adequate remedy at law–is clearly right; it sued for defamation and asked for $750,000 in compensatory and punitive damages. The fact that the contractor had an adequate remedy at law was the gist of Perez’s “equity will not enjoin a libel argument.” She assigned error on that ground and briefed the point in her petition. I don’t know if she adequately raised this point below, but Perez argues that she did and invokes the ends of justice exception at footnote 1 of her brief.

But even if she’s wrong, that just means that the Court would have to reach the constitutional issue,. Perez wins there, too. So even if the Court did deviate from its own rules, that deviation was, at worst, harmless error.

3. Watch what you post.

Finally, a broader point: people interact differently on the internet than the do in real life, and they sometimes post things to the entire world that they would never say face-to-face. Dietz is a firm reminder that the same defamation rules that govern people in the real world apply on the internet as well. And anonymous posting, which feeds some of the online incivility, won’t save you, either. Virginia law specifically provides mechanisms that allow a litigant to find out who’s behind an anonymous posting.

All in all, Dietz is great fun–a fascinating case that’s worth watching further. Hat tips to Public Citizen, VLW, and Emmert.