The Court of Appeals handed down Theologis v. Weiler today, a fun opinion in a defamation and business-conspiracy case. The whole opinion is highly recommended. Summary below, but here are the points of greatest interest to appellate practitioners:
- Right Result/Different Reason. The Court can affirm a judgment sustaining a demurrer only on a ground raised by the defendant in the trial court. See Code § 8.01-273(A). So those judgments differ from other appeals in which the right-result-different-reason doctrine would let the appellee run a new legal argument on appeal.
- What Do We Say About Written Statements? The five defendants raised different (though sometimes overlapping) arguments in their demurrers. The trial court entered a final order saying, “Defendants’ demurrers are sustained with prejudice for the reason(s) stated by the Court at the hearing . . . , which are incorporated herein by reference.” The parties then disagreed over the accuracy of Theologis’s proposed written statement of facts. So the trial court entered a “written statement of facts” rejecting Theologis’s proposed statement as “inaccurate” and clarifying that the court had sustained the demurrers on the grounds raised by each defendant.
- Oral Argument. Theologis alleges 26 (!) defamatory statements. At oral argument, the CAV asked him to pick his top five, which it then addresses in the text. The Court relegates the remaining 21 statements to a footnote.
- Ouch. The Court also got off a few zingers. A case in point:
We have an “obligation to decide cases on the best and narrowest grounds available.” Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022). Given the large number of issues presented here, we look for the best and fewest grounds on which to resolve this appeal.
- Ask for Leave to Amend. The trial court sustained the defendants’ demurrers to Theologis’s complaint with prejudice. Theologis complained on appeal that he should have been granted leave to amend. But the record contained not evidence that he sought leave to amend. So he could not raise that argument.
Again, the opinion is terrific throughout. If you’re still reading, here’s a quick summary:
Facts: Theologis sued several of his fellow townhome-association members after they publicly criticized his performance as the association’s president. Four defendants wrote a letter saying (among many other things!) that Theologis had “made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws” and that he had “usurp[ed] the authority granted to the Board as a whole via the Covenant & By-Laws.” A fifth defendant wrote a social-media post urging a fellow townhome resident to voice her concerns about the association’s operations, writing that “Theologis is capricious in his enforcement of [HOA] policy (even as he has broken our HOA bylaws).” The defendant added that Theologis “should be leaving the board . . . and you should have more reasonable people on the review board.” Theologis’s three-count complaint asserted claims of defamation and business conspiracy based on the letter and post. All the defendants demurred, and the trial court sustained the demurrers for the reasons stated by the defendants. The wrinkle is that not all the defendants asserted the same arguments.
Issue: Did the trial court err by sustaining the demurrers to Theologis’s defamation and business conspiracy claims?
Holding: No. Affirmed. The defamation claim fails against all defendants because the statements lack the requisite “sting” to harm Theologis’s reputation. Here, Theologis’s alleged misapplication of the association’s governing documents just isn’t enough to support a defamation claim. Because the defamation claims fail, the business-conspiracy claims lack a predicate tort, so they necessarily fail as well.