Mansfield v. Bernabei

• Decision Date: 07 June 2012
• Docket Number: Record No. 111314.
• Citation: 727 S.E.2d 69
• Parties: James M. MANSFIELD v. Lynne BERNABEI, et al.
• Court: Virginia Supreme Court

727 S.E.2d 69

James M. MANSFIELD

v.Lynne BERNABEI, et al.

Record No. 111314.

Supreme Court of Virginia.

June 7, 2012.

James M. Mansfield (Mansfield & Payne, on brief), for appellant.

Alan R. Kabat for appellee Michael Ford.

William L. Mitchell, II (Eamon F. Redmond; Eccleston and Wolf, on brief), for appellees Lynee Bernabei, Emily Brittain Reed and Bernabei & Wachtel, P.L.L.C.

Present: All the Justices.

Opinion by Justice S. BERNARD GOODWYN.

In this appeal, we consider whether the circuit court erred in ruling that the doctrine of absolute judicial privilege may apply to communications made before the filing of an action.

Material Facts and Proceedings

Michael A. Ford served as the building manager at Horizon House, a residential condominium in Arlington, Virginia. After his termination from that employment, Ford filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the three corporate employers vested with the authority to fire him, Horizon House Condominium Unit Homeowners Association, Zalco Realty, Inc., and MDV Maintenance, Inc. The EEOC issued a probable cause determination that two of these employers discriminated against Ford on the basis of his race in violation of federal law.

James M. Mansfield served as counsel to Horizon House. He was involved in the process of hiring Ford and allegedly, among other actions that interfered with Ford's employment, wrote a letter containing defamatory statements about Ford to the Horizon House board.

Ford, acting by and through Bernabei & Wachtel, PLLC, sent a demand letter and a draft complaint marked “Draft—For Settlement Purposes Only” to numerous individuals and entities. Mansfield was one of the defendants named in the draft complaint. The demand letter concluded: “Please contact me with a response to this settlement proposal by the close of business on December 17, 2008. If we do not receive a response from you by that time, Mr. Ford will have no choice but to initiate formal legal action.”

Approximately one week later, Ford filed a complaint, substantially similar to the draft complaint, in the United States District Court for the Eastern District of Virginia against several defendants, including Mansfield.¹

Mansfield subsequently filed a complaint in the Circuit Court of Fairfax County against Lynne Bernabei, Emily Brittain Read, Bernabei & Wachtel, PLLC, and Ford (collectively “the defendants”) alleging that he was defamed by statements made about him in the draft complaint.

The defendants filed demurrers, claiming the allegations made in the draft complaint, sent before the lawsuit was filed, were nevertheless privileged. Mansfield claimed there was no privilege because there was no pending judicial proceeding when the draft complaint was communicated.

The circuit court sustained the demurrers. It ruled that absolute or judicial privilege applied to the communications in the draft complaint that were published only to interested parties in good faith for the purpose of attempting to settle the underlying dispute preliminary to a proposed judicial proceeding. Mansfield timely filed a notice of appeal and we granted an appeal on the following assignments of error:

1. The trial court erred by ignoring the mandates of Penick and its progeny, establishing the concrete element that a communication must be part of a judicial proceeding to be considered absolutely privileged.

2. The trial court erred by failing [sic] by ignoring the important Penick public policy ramifications.²

Analysis

Mansfield argues that the circuit court erred in sustaining the demurrers because this Court established a concrete limit on absolute privilege in Penick v. Ratcliffe, 149 Va. 618, 140 S.E. 664 (1927), and its progeny. Mansfield asserts that if a communication is not part of a judicial proceeding or process and relevant to that judicial proceeding or process, the communication is not protected by absolute judicial privilege. He claims that this Court has declined to extend the privilege beyond a judicial environment, and that a draft complaint sent prior to the actual filing of an action fails to satisfy the prerequisites necessary for the privilege to be applicable.

The defendants respond that absolute privilege should attach to communications if they are relevant and pertinent to the subject matter of litigation that is in good faith and under serious contemplation. They argue that Penick does not address the instant circumstance and this Court has never expressly found absolute privilege inapplicable to pre-filing circulation of a draft complaint. The defendants urge application of the Restatement (Second) of Torts, which they claim provides immunity for certain communications before filing as well as safeguards against abuse of such communications. We agree.

This Court applies well-settled principles in reviewing the circuit court's decision to sustain the demurrers:

“The purpose of a demurrer is to determine whether a motion for judgment states a cause of action upon which the requested relief may be granted. A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. Accordingly, we accept as true all properly pled facts and all inferences fairly drawn from those facts. Because the decision whether to grant a demurrer involves issues of law, we review the circuit court's judgment de novo.”

Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 557, 708 S.E.2d 867, 869 (2011) (quoting Abi–Najm v. Concord Condo., LLC, 280 Va. 350, 356–57, 699 S.E.2d 483, 486–87 (2010)). In ruling on the demurrers, this Court considers not only the pleadings, but also the documents attached thereto. E.g., Caudill v. County of Dinwiddie, 259 Va. 785, 788, 529 S.E.2d 313, 314 (2000).

Only a partial version of Ford's settlement draft complaint, omitting reference to the EEOC action, was attached to Mansfield's defamation complaint; Ford's federal complaint was not attached thereto. However, Mansfield stipulated to the circuit court's consideration of the federal complaint and the demand letter in ruling upon the demurrers. “A court in ruling upon a demurrer may consider documents not mentioned in the challenged pleading when the parties so stipulate.” Flippo v. F & L Land Co., 241 Va. 15, 17, 400 S.E.2d 156, 156 (1991).

In Penick, this Court applied the doctrine of absolute privilege to a petition, filed by voters, alleging bribery and other illegal acts by a judge of elections. 149 Va. at 621–27, 637–38, 140 S.E. at 665–67, 670. The petition was dismissed and the judge of elections filed a libel action against the voters on the basis of the petition's contents. Id. at 622–26, 140 S.E. at 665–67. On appeal from a verdict in favor of the judge, this Court reversed, holding that absolute privilege barred the libel action. Id. at 637–38, 140 S.E. at 670. The election contest was a judicial proceeding and the allegations of the petition were material, relevant and pertinent to the relief sought; therefore, the allegations were privileged. Id. at 635, 140 S.E. at 669. In so holding, this Court noted that the public interest and the ends of justice are best served in allowing counsel to freely advocate for their clients. Id. at 632, 140 S.E. at 668.

In the Commonwealth, “[i]t is well settled that ‘words spoken or written in a judicial proceeding that are relevant and pertinent to the matter under inquiry are absolutely privileged’ ” against actions on the basis of defamation. Donohoe Constr. Co. v. Mt. Vernon Assocs., 235 Va. 531, 537, 369 S.E.2d 857, 860 (1988) (quoting Darnell v. Davis, 190 Va. 701, 707, 58 S.E.2d 68, 70 (1950)); see also Penick, 149 Va. at 627, 140 S.E. at 667.³ For absolute judicial privilege to attach, the communications at issue must be “material, relevant or pertinent” to the issues of the judicial proceeding. See, e.g., Penick, 149 Va. at 635, 140 S.E. at 669.

This Court articulated the broad rule of absolute privilege in Penick but has not limited its application to trials, reasoning that the privilege “includ[es] within its scope all proceedings of a judicial nature....” Id. at 628, 140 S.E. at 667 (citation and internal quotation marks omitted). In Donohoe Construction, this Court accordingly concluded that the filing of a mechanic's lien was a judicial proceeding to which absolute privilege applied. 235 Va. at 538–39, 369 S.E.2d at 861 (noting that perfection and enforcement of a lien are “inseparable”). Absolute judicial privilege clearly extends outside the courtroom. See, e.g., Watt v. McKelvie, 219 Va. 645, 651, 248 S.E.2d 826, 829 (1978) (protecting third party statements republished by another during a deposition). However, this Court has not yet addressed the precise issue in this case, when a complaint containing allegedly defamatory statements is drafted and circulated before the filing of an action.

We have considered application of absolute judicial privilege to communications tangentially related to potential litigation. In Lindeman v. Lesnick, 268 Va. 532, 535, 604 S.E.2d 55, 57 (2004), this Court addressed defamatory statements made by a physician to a patient, Lindeman, about another doctor, Lesnick, in regard to treatment Lindeman received pursuant to a workers' compensation award. Lindeman shared the written statements with his attorney, who inadvertently forwarded them to counsel for the insurance company of Lindeman's employer, who distributed them to the employer. Id. The employer provided the statements to Lesnick, who thereafter filed a defamation action. Id.

The Court noted that an ongoing award for workers' compensation medical benefits did not constitute a pending proceeding and that no claim was pending before the Workers' Compensation Commission. Id. at 538, 604 S.E.2d at 58–59. While stating that “we have extended the application of the absolute privilege well beyond the actual courtroom,” this Court declined to extend the privilege to “mere potential litigation”...