Ely v. Whitlock

385 S.E.2d 893, 238 Va. 670, 6 Va. Law Rep. 804, 1989 Va. LEXIS 178
CourtSupreme Court of Virginia
DecidedNovember 10, 1989
DocketRecord 880355
StatusPublished
Cited by46 cases

This text of 385 S.E.2d 893 (Ely v. Whitlock) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ely v. Whitlock, 385 S.E.2d 893, 238 Va. 670, 6 Va. Law Rep. 804, 1989 Va. LEXIS 178 (Va. 1989).

Opinions

Justice Whiting

delivered the opinion of the Court.

In these two consolidated actions for (1) malicious prosecution, (2) abuse of process, and (3) intentional infliction of emotional distress, we determine whether the motions for judgment are sufficient to state causes of action for each of these claims.

W.W. Whitlock and his son John D. Whitlock, both of whom are lawyers, each filed a motion for judgment against another lawyer, Rae H. Ely, seeking to recover compensatory and punitive damages based on separate counts of malicious prosecution, abuse of process, and defamation. Later, each plaintiff added a fourth count alleging intentional infliction of emotional distress. But for two exceptions noted later, the pertinent allegations contained in the two separate motions for judgment are identical.

The trial court overruled Ely’s demurrer to all four counts of each motion for judgment, and Ely objected. John Whitlock later withdrew his defamation count.

The motions for judgment indicate that on October 24, 1984, Ely filed an answer on behalf of her client to a cross-bill in a divorce suit pending in the Circuit Court of Louisa County in which the Whitlocks were opposing counsel. The answer alleged that the Whitlocks had filed the cross-bill in bad faith and in violation of Rule l:4(a), as well as Disciplinary Rule 7-102 and Ethical Considerations 7-9 and 7-10 of the Code of Professional Responsibil[673]*673ity. On December 13, 1984, pursuant to former Code §§ 54-74 and -74.1,1 Ely filed a motion in the divorce suit for a rule to show cause why the Whitlocks’ licenses to practice law should not be revoked or suspended. On February 12, 1985, the court severed Ely’s ethical complaints against the Whitlocks from the divorce suit and ordered that a new file be opened, but not considered until the divorce suit was concluded.

After a joint bench trial of both of the Whitlocks’ claims, the court entered judgment for compensatory damages of $2,500 and punitive damages of $5,000 on each of the seven remaining counts. Ely sought to appeal the entire judgment, but subsequently paid the judgment relating to W.W. Whitlock’s defamation claim.

Because Ely’s trial counsel did not serve notice of filing the trial transcript upon opposing counsel, as required by Rule 5:11(b), we sustained the Whitlocks’ motions to dismiss all assignments of error relating to factual matters that address issues requiring a consideration of the transcript. We granted this appeal, limited to reviewing the trial court’s action in overruling Ely’s demurrers to the remaining causes of action.

After we granted the appeal, the Commonwealth, pursuant to the provisions of Rule 5:30(a)(l), filed an amicus curiae brief on behalf of the Virginia State Bar. The State Bar is responsible for attorney disciplinary matters.

In our review, we consider only the allegations contained in the motions for judgment in determining whether they state causes of action. All matters properly pleaded and any reasonable inferences arising therefrom will be considered true for purposes of our review. The Ryland Group v. Wills, 229 Va. 459, 461, 331 S.E.2d 399, 401 (1985); United Masonry v. Jefferson Mews, 218 Va. 360, 366, 237 S.E.2d 171, 175 (1977).

I.

Ely contends that the damage allegations contained in the malicious prosecution counts fail to allege special injury as required by Ayyildiz v. Kidd, 220 Va. 1080, 266 S.E.2d 108 (1980). Kidd involved a physician’s malicious prosecution action against a lawyer who had represented a client in an allegedly frivolous med[674]*674ical malpractice suit against the physician. There, we adopted the English rule requiring allegation and proof of personal arrest, property seizure, or special injury in malicious prosecution actions arising out of prior civil actions. 220 Va. at 1083, 266 S.E.2d at 111.

We defined special injury as “a special loss or unusual hardship resulting from the malicious prosecution of the original action, . . . that would not stem normally from a medical malpractice suit.” 220 Va. at 1084, 266 S.E.2d at 111-12. Applying that definition, we held that allegations regarding the costs of defending the malpractice action, the damages to the physician’s professional reputation, and the loss of present and future professional income did not satisfy the definition of special injury. 220 Va. at 1084-85, 266 S.E.2d at 112.

The Whitlocks allege that

[a]s a direct and proximate result of defendant’s actions as aforesaid, plaintiff has been greatly injured and his reputation and character have been attacked and these allegations have been discussed throughout his professional, business and social communities. Plaintiff has been hindered in the practice of his profession and has been required to spend substantial time away from his business; he has had to expend substantial sums of money to defend against these wholly frivolous charges, has been caused much anxiety and great mental anguish, [and has been subjected to unusual and unnecessary stress which has threatened his physical well being].2

The Whitlocks claim that this sufficiently alleges the special injury required by Kidd. In fact, however, their dual allegations of “anxiety and great mental anguish” and W.W. Whitlock’s individual allegation of “unusual and unnecessary stress which has threatened his physical well being” are, like their remaining damage allegations, injuries which would normally stem from a disciplinary complaint. Anyone whose livelihood is threatened by such a proceeding would necessarily feel some degree of mental anguish. Therefore, they do not sufficiently allege special injury.

The Whitlocks allege that the object of the prior disciplinary complaints was to deprive them of their livelihood, which re-[675]*675suited in special injury to them. We believe the policy reasons, enunciated in Kidd, for limiting malicious prosecution actions arising out of prior malpractice actions apply with equal force in the context of prior disciplinary actions. With that in mind, we conclude that the risk of damage to a lawyer’s livelihood is a natural consequence of any disciplinary proceeding against him.

Alternatively, the Whitlocks contend that they do not need to allege special injury because disciplinary proceedings are “quasi-criminal in nature.”3 However, we have held that disciplinary proceedings are civil, not criminal, in nature. Seventh District Committee v. Gunter, 212 Va. 278, 284, 183 S.E.2d 713, 111 (1971).

The Whitlocks attempt to distinguish Gunter by arguing that, in the context of subsequent malicious prosecution actions, we should regard prior disciplinary proceedings as “quasi-criminal” because those proceedings, like criminal proceedings, are conducted primarily at the expense of parties other than the complainant. They maintain that the expense of civil suits deters groundless civil actions which might give rise to subsequent malicious prosecution actions.

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Bluebook (online)
385 S.E.2d 893, 238 Va. 670, 6 Va. Law Rep. 804, 1989 Va. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ely-v-whitlock-va-1989.