Almy v. Grisham

• Decision Date: 12 January 2007
• Docket Number: Record No. 052378.
• Citation: 639 S.E.2d 182
• Parties: Katharine ALMY v. John GRISHAM, Jr., et al.
• Court: Virginia Supreme Court

Page 182

639 S.E.2d 182

Katharine ALMY v. John GRISHAM, Jr., et al.

Record No. 052378.

Supreme Court of Virginia.

January 12, 2007.

Bernard J. DiMuro (Michael S. Lieberman, DiMuro Ginsberg, on briefs), Alexandria, for appellant.

Thomas E. Albro, J.H. Revere, III (Patricia D. McGraw, James W. Morris, Donald R. Morin, Marc A. Peritz, Tremblay & Smith, Kalbaugh Pfund & Messersmith, Morris & Morris, Morin & Barkley, on briefs), Charlottesville, for appellees.

Present: All the Justices.

OPINION BY Justice BARBARAMILANO KEENAN.

In this appeal involving an action for intentional infliction of emotional distress and a related civil conspiracy claim, we consider whether the circuit court erred in sustaining the defendants' demurrers. As part of our consideration, we decide the issue of first impression whether a civil claim for conspiracy to intentionally inflict emotional distress will be recognized as a cause of action in this Commonwealth.

I. MATERIAL FACTS AND PROCEEDINGS

In February 2004, Katharine Almy filed a motion for judgment against John Grisham, Jr., Alan Swanson, Donna Swanson, David Liebman, and Cina L. Wong (collectively, defendants), alleging claims including intentional infliction of emotional distress and conspiracy to intentionally inflict emotional distress. Almy had asserted similar claims in a previous action, which was dismissed without prejudice on her motion for nonsuit.

The defendants each filed demurrers asserting that Almy had failed to state a cause of action. At a hearing on the demurrers, defendant Grisham asked that the circuit court take judicial notice of the deposition testimony of Dr. Stephen Alexander, a licensed professional counselor and potential witness in the case, who had given the deposition testimony in the previous action. Almy did not object to Grisham's request.

After considering the parties' arguments, the circuit court issued a letter opinion stating:

[T]he intentional infliction of emotional distress and conspiracy to intentionally inflict emotional distress claims will not survive demurrer, based on the depositions which are part of the record in this case. The depositions[ ] allow[ ] the court to evaluate and decide the merits of claims set forth in the motion for judgment.¹

In a final order incorporating its letter opinion, the circuit court sustained the defendants' demurrers and dismissed the action with prejudice.

Almy's motion for judgment recounted a series of events that allegedly occurred between 1996 and 1999. Beginning in 1996 and continuing through 1998, Donna Swanson (Donna) received several anonymous, handwritten letters that made various accusations, including allegations of marital infidelity on the part of Alan Swanson (Alan), Donna's husband. In 1998, Grisham also received an anonymous, hand-written letter. According to Almy's allegations, Grisham and the Swansons decided together that they should determine the source of the anonymous letters, suspecting that Almy was the author. Grisham allegedly stated during a tape-recorded conversation that he "really, really wanted to make Ms. Almy suffer for writing those letters."

As part of their effort to determine if Almy was the author of the letters, Grisham and the Swansons contacted Liebman, a handwriting analyst. Liebman asked to see the anonymous letters, along with known samples of Almy's handwriting. Grisham produced for Liebman's analysis a "thank-you" note written by Almy and a form Almy had completed when she registered her daughter to play baseball in a league in which Grisham was a coach. Liebman later requested additional samples of Almy's handwriting.

To provide Liebman with the requested additional samples, Grisham and Alan allegedly agreed to obtain documents bearing Almy's handwriting from her children's files at St. Anne's-Belfield School (St. Anne's). Grisham served on the board of directors at St. Anne's, and Alan was a teacher there. Alan, without permission from anyone at St. Anne's, allegedly obtained from the school files an enrollment and medical release form that Almy had completed, which was marked "Strictly Confidential" and contained confidential and personal information. Alan provided a copy of the document to Grisham, who allegedly sent it to Liebman.

Wong, a handwriting examiner who worked with Liebman, also analyzed the submitted samples. Liebman and Wong concluded in a written report (Liebman report) that it was possible Almy had written the letters, and that she appeared to have addressed the envelopes containing the letters. Almy alleged that Grisham, Liebman, and Wong collaborated regarding the desired contents and phrasing of the Liebman report.

Grisham and the Swansons next met with Grisham's attorney, John Zunka. Grisham allegedly told Zunka that the Liebman report concluded that Almy had written the anonymous letters. Based on this information, Zunka advised Grisham to contact the local Commonwealth's Attorney, James Camblos, to initiate criminal proceedings against Almy.

Grisham and the Swansons met with Camblos and allegedly told him that their handwriting experts concluded that Almy had written some of the anonymous letters and had addressed the envelopes containing those letters. Camblos contacted Detective Thomas Grimes of the Albemarle County Police Department, who arranged a meeting with the Swansons. The Swansons provided Grimes with copies of the anonymous letters and told him that they thought Almy was the author.

In August 1998, Grimes confronted Almy at her residence and asked her if she had written the anonymous letters. After Almy denied writing the letters, Grimes informed Almy that she was not under arrest but that he "want[ed] the letters to stop." Almy alleged that Grimes was "rude and demeaning" during the visit, causing her to cry and become upset.

Almy asserted that as a result of Grimes' visit in August 1998, she suffered severe emotional distress, including nervousness, sleeplessness, stress with accompanying physical symptoms, and an inability to concentrate. Almy further alleged that after Grimes' visit she withdrew from her customary activities, could not perform her duties as wife and mother, was unable to manage her mother's real estate properties, and could not perform her administrative duties at a nonprofit organization.

In November 1998, Almy sought treatment for her emotional distress from Dr. Alexander, who concluded that Almy suffered from a "major depressive disorder." Almy refused medication for her depression but, over the next seven months, she received therapy from Dr. Alexander on several occasions.

Almy alleged that her depressed condition improved until about August 1999, when she learned that Grisham and the Swansons earlier had obtained materials from certain files at St. Anne's containing confidential information about Almy's children. According to Almy's allegations, upon learning that Grisham and the Swansons had made copies of documents from those files, Almy felt "extremely violated, outraged, deeply disturbed and worried," and she "feared for how her children would be treated during the upcoming school year." As a result, Almy allegedly suffered a serious "setback" in her depression. She asserted that her husband and several friends observed a "return of her depressive state and debilitating functioning." Almy also alleged that she again sought counseling from Dr. Alexander, who concluded that Almy's discovery concerning her children's files had caused the "setback" in her depression.

II. ARGUMENTS ON APPEAL

Almy argues that the circuit court erred in considering Dr. Alexander's deposition testimony when ruling on the defendants' demurrers, because a demurrer addresses only the legal sufficiency of the allegations of a motion for judgment. Almy also contends that the circuit court erred in sustaining the demurrers because Almy properly pleaded all required elements of intentional infliction of emotional distress and an accompanying conspiracy claim.

In response, Grisham initially argues that Almy did not preserve for appeal the issue whether the circuit court erred in relying on Dr. Alexander's deposition testimony when ruling on the demurrers.² Next, addressing the merits of Almy's pleadings, Grisham contends that the pleadings fail to state a cause of action. Grisham asserts that Almy's allegations of emotional distress are identical to the plaintiff's allegations in Russo v. White, 241 Va. 23, 400 S.E.2d 160 (1991), in which this Court held that the pleadings were insufficient to support a claim of intentional infliction of emotional distress.

Grisham also argues that Almy's pleadings are deficient because they do not allege facts sufficient to establish that the defendants' actions were intentional or reckless and were outrageous. He further contends that because Almy's pleadings do not support a claim for intentional infliction of emotional distress, her conspiracy claim based on that underlying tort likewise fails.

III. ANALYSIS

We first observe that when ruling on a demurrer, in contrast to ruling on a motion for summary judgment, a court is not permitted to decide the merits of a claim but only may decide whether a plaintiff's factual allegations are sufficient to state a cause of action. Barber v. VistaRMS, Inc., 272 Va. 319, 327, 634 S.E.2d 706, 711 (2006); see Fun v. Virginia Military Institute, 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993); Elliott v. Shore Stop, Inc., 238 Va. 237, 239-40, 384 S.E.2d 752, 753 (1989). Thus, a demurrer presents an issue of law, not an issue of fact. See Code § 8.01-273; Harris v. Kreutzer, 271 Va. 188, 196, 624 S.E.2d 24, 28 (2006); Glazebrook v. Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).

In the present case, the circuit court erred in considering the factual merit of Almy's allegations in ruling on the defendants' demurrers.³ Our analysis does not end here, however, because Almy asks us to review the circuit court...