Cashion v. Smith

• Citation: 286 Va. 327,749 S.E.2d 526
• Decision Date: 31 October 2013
• Docket Number: Record No. 121797.
• Parties: Bradley J. CASHION v. Robert S. SMITH, et al.
• Court: Supreme Court of Virginia

286 Va. 327

749 S.E.2d 526

Bradley J. CASHION

v.Robert S. SMITH, et al.

Record No. 121797.

Supreme Court of Virginia.

Oct. 31, 2013.

Monica Taylor Monday (E. Scott Austin; Peter G. Irot; James J. O'Keeffe, IV; Gentry Locke Rakes & Moore, Roanoke, on briefs), for appellant.

Frank K. Friedman (Agnis C. Chakravorty; Erin B. Ashwell; Woods Rogers, Roanoke, on brief), for appellee Carilion Medical Center.

(Paul G. Beers; Glenn, Feldmann, Darby & Goodlatte, Roanoke, on brief), for appellee Robert S. Smith, M.D.

Present: All the Justices.

Opinion by Justice WILLIAM C. MIMS.

In this appeal, we consider whether an endorsement of an order withdrew or waived issues for appeal under Code § 8.01–384(A), whether allegedly defamatory statements were non-actionable expressions of opinion or rhetorical hyperbole, and whether such statements were protected by qualified privilege.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

In November 2009, Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist, provided emergency care to a critically injured patient. Dr. Smith is employed full-time by Carilion Medical Center (“Carilion”). Dr. Cashion was employed by Anesthesiology Consultants of Virginia, Inc., which provides services to Carilion. Despite the efforts of Dr. Smith and Dr. Cashion, the patient died during surgery.

Following the patient's death, Dr. Smith criticized Dr. Cashion in the operating room. Dr. Smith, in front of several other members of the operating team, made the following remarks to Dr. Cashion: ¹

“He could have made it with better resuscitation.”

“This was a very poor effort.”

“You didn't really try.”

“You gave up on him.”

“You determined from the beginning that he wasn't going to make it and purposefully didn't resuscitate him.”

Immediately thereafter, Dr. Smith addressed Dr. Cashion in the hallway outside the operating room, stating: “You just euthanized my patient.” Nurse Sherri Zwart, who also had been in the operating room, and Dr. James Crawford, Chief of Anesthesia at Carilion, were present in the hallway at the time. In a subsequent meeting that evening between Drs. Smith, Cashion, and Crawford, Dr. Smith repeatedly stated that Dr. Cashion “euthanized” the patient.

Dr. Cashion filed an amended complaint alleging defamation and defamation per se against Dr. Smith and Carilion, which Dr. Cashion alleged to be liable under a theory of respondeat superior. Dr. Smith and Carilion filed demurrers and pleas in bar asserting, among other things, that Dr. Smith's statements were non-actionable expressions of opinion or rhetorical hyperbole. They also asserted that qualified privilege applied to the statements yet the amended complaint failed to allege facts establishing common law malice to overcome the privilege.

After a hearing, the circuit court entered an order (“the Demurrer Order”) sustaining the demurrers and granting the pleas in bar as to the non-euthanasia statements on the ground that they were non-actionable expressions of opinion. Concomitantly, the court overruled the demurrers and denied the pleas in bar as to the euthanasia statements. Dr. Smith and Carilion annotated the Demurrer Order with their objections on the grounds asserted in their pleadings and at the hearing. Dr. Cashion endorsed it “WE ASK FOR THIS.”

Following discovery, Dr. Smith and Carilion moved for summary judgment, again asserting their rhetorical hyperbole and qualified privilege arguments. Dr. Cashion responded by arguing, among other things, that qualified privilege did not apply because Dr. Smith did not make the euthanasia statements in good faith and was not discussing the care of the patient when he made them.

After a hearing, the circuit court ruled that the euthanasia statements were not rhetorical hyperbole. However, it ruled that qualified privilege applied to Dr. Smith's statements and there was no evidence of common law malice on the part of Dr. Smith necessary to overcome the privilege. Accordingly, it awarded Dr. Smith and Carilion summary judgment and dismissed the amended complaint. We awarded Dr. Cashion this appeal.

II. ANALYSIS

A. OPINION OR STATEMENTS OF FACT

Dr. Cashion asserts the circuit court erred by sustaining the demurrers and pleas in bar as to the non-euthanasia statements and ruling that they were non-actionable expressions of opinion. As an initial matter, Dr. Smith and Carilion argue that he has withdrawn or waived this argument for appeal under Code § 8.01–384(A) because he endorsed the Demurrer Order “WE ASK FOR THIS.” They assert that endorsement stated his express written agreement with the rulings it contained. We disagree.

Code § 8.01–384(A) provides in relevant part that

No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

We have on several occasions interpreted this statute to clarify the ambiguity of what constitutes a waiver by “express written agreement in [an] endorsement of [an] order.” We have repeatedly held that “once a litigant informs the circuit court of his or her legal argument, in order for a waiver to occur within the meaning of Code § 8.01–384(A), the record must affirmatively show that the party who has asserted an objection has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” Kellermann v. McDonough, 278 Va. 478, 491, 684 S.E.2d 786, 792 (2009) (quoting Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 (2009)) (internal alterations and quotation marks omitted).

We discussed waiver by endorsement at length in Chawla v. BurgerBusters, Inc., 255 Va. 616, 499 S.E.2d 829 (1998). In that case, the appellants assigned error to the circuit court's ruling that they bore the burden of proof on the question of the reasonableness of a claim for attorneys' fees. They noted objections to the interlocutory order effectuating that ruling but when the court restated it in a subsequent interlocutory order, they endorsed the second order as “SEEN AND AGREED.” They again noted their objection to the ruling on the final order. Id. at 621–22, 499 S.E.2d at 832.

On appeal, the appellee argued the “SEEN AND AGREED” endorsement waived the issue. We disagreed, holding:

Waiver is the voluntary and intentional abandonment of a known legal right, advantage, or privilege. Weidman v. Babcock, 241 Va. 40, 45, 400 S.E.2d 164, 167 (1991); Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707 (1987). The essential elements of waiver are knowledge of the facts basic to the exercise of the right and intent to relinquish that right. Weidman, 241 Va. at 45, 400 S.E.2d at 167;Fox, 234 Va. at 425, 362 S.E.2d at 707.Waiver of a legal right will be implied only upon clear and unmistakable proof of the intention to waive such right for the essence of waiver is voluntary choice. Weidman, 241 Va. at 45, 400 S.E.2d at 167;May v. Martin, 205 Va. 397, 404, 137 S.E.2d 860, 865 (1964).

In the present case, the [appellants] made clear to the trial court [their] objection to the ruling respecting the burden of proof issue and never abandoned or evidenced an intent to abandon the objection. Thus, [they] preserved the issue for appeal.

Id. at 622–23, 499 S.E.2d at 833 (emphasis added). In short, the endorsement itself did not constitute a waiver.

We reached the same result in Helms, even though the appellant never noted an objection on any order. In that case, the appellants assigned error to the circuit court's ruling that they had failed to prove adverse possession by clear and convincing evidence. They endorsed as “Seen” the court's final order effectuating that ruling. 277 Va. at 5–6, 671 S.E.2d at 129. Noting that the appellants had argued adverse possession in a written memorandum, we held that the court was thereby informed of their position, which they had not subsequently expressly withdrawn or waived. Id. at 7, 671 S.E.2d at 129–30. Again, the endorsement itself did not constitute a waiver.

We considered the endorsement “Seen and consented to” in Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239 (2010). In that case, the appellee assigned cross-error in an appeal from the circuit court's award of summary judgment in favor of the appellee. Considering whether the appellee's endorsement waived the issue argued in the assignment of cross-error, we noted that the order contained elements favorable to both parties. We concluded that the appellee's endorsement “Seen and consented to” indicated his consent only to the elements favorable to him, just as the appellant's endorsement “Seen and objected to” objected only to the elements adverse to her. Id. at 624, 692 S.E.2d at 243 (alterations omitted). We also again observed that the appellee's legal argument had been presented to the court in written memoranda and acquiescence to the entry of an order partly in his favor did not affirmatively waive or abandon it.

The most recent case in which we considered the effect of a “WE ASK FOR THIS” endorsement was Lamar Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31 (1991).² However, our analysisdid not addressCode § 8.01–384(A). The statute did not then include the provision, “[n]o party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order.” The General Assembly amended Code § 8.01–384(A) to add this language in its session following our Lamar Corp. decision. 1992 Acts ch. 564.

Like the order in Johnson, the Demurrer Order contains elements...