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Absolute Means Absolute . . . Except When it Doesn’t

February 24, 2022

In October 2021, the Supreme Court of Virginia held that absolute privilege “does not apply to non-defamation torts in Virginia, specifically including malicious abuse of process, tortious interference with contractual relations, and civil conspiracy.” Givago Growth, LLC v. iTech AG, LLC, 863 S.E.2d 684, 688 (Va. 2021). The Court also extended absolute privilege to lis pendens in a defamation tort claim. Id. at 687.

The petitioners held title in a piece of land and entered into a partnership agreement with a construction company with the intent to contribute to developing the land and sell it in the future. Id. at 685. The construction company borrowed capital from the appellees, iTech AG, LLC, to fund its contribution, and later defaulted on the loan. Id. at 686. The construction company and iTech had agreed that the construction company would provide a collateral deed of trust on the land, and when they could not provide this deed, iTech filed suit against petitioners, as well as a lis pendens in the land records for the land. Id. The lis pendens therefore served as a notice of pending litigation affecting the land.

The lis pendens, however, was filed while the land was under contract for sale, resulting in proceeds being held in escrow after the sale ultimately closed. Later, iTech nonsuited the complaint and withdrew the lis pendens, sparking petitioner’s suit alleging “malicious abuse of process, slander of title, tortious interference with contractual relations, and civil conspiracy” due to the filing of the lis pendens. Id.

The trial court sustained the appellees’ demurrers raising the affirmative defense of absolute privilege, and dismissed the complaint with prejudice, holding that “the doctrine of absolute privilege applied to the filing of a lis pendens.” Id. The doctrine of absolute privilege recognizes that “words spoken or written in a judicial proceeding that are relevant and pertinent to the matter under inquiry are absolutely privileged” from subsequent defamation charges. Id. at 687 (quoting Lindeman v. Lesnick, 268 Va. 532, 538 (2004)). The doctrine of absolute privilege is also “broad and comprehensive” and includes “any proceeding for the purpose of obtaining such remedy as the law allows.” Id. (quoting Penick v. Ratcliffe, 149 Va. 618, 627-28 (1927)).

On appeal, the Supreme Court reversed and remanded the trial court decision, noting that affirmative defenses such as absolute privilege cannot be raised in a demurrer. Id. at 686-687. The question of whether “the filing of a lis pendens is a part of a judicial proceeding for purposes of establishing absolute privilege against a defamation claim” was one of first impression for the Court. Id. at 687. To address it, the Court likened the filing of a lis pendens to the filing of a mechanic’s lien, which is subject to a privilege. Id. The Court also noted that, like a mechanic’s lien, a lis pendens is “intertwined with the filing of a complaint,” and it would be “incongruous to extend the privilege to a complaint but not to its associated lis pendens” when addressing a slander of title allegation. Id. The Court clarified that while the circuit court held that absolute privilege applies to slander of title, malicious abuse of process, tortious interference with contractual relations, and civil conspiracy, the Supreme Court has never applied and does not apply absolute privilege to the latter three causes of action, as they are not defamation torts. Id. at 688.

For the present case, the question of “whether the information in the lis pendens was sufficiently ‘relevant and pertinent to the matter under inquiry’ for absolute privilege to apply” was a question of fact to be determined on remand. Id. (quoting Lindeman, 268 Va. at 538). However, even with a liberal rule on relevancy or pertinency favored by Virginia courts, the Supreme Court noted that the facts in the present case are “concerning and may not satisfy” the rule. Id.

This article was co-authored by Law Clerk, Jennifer Nigro.