Givago Growth, LLC v. iTech AG, LLC
863 S.E.2d 684
Va.2021Background
- In October 2017 petitioners (Contanza Valdez and Givago Growth, LLC) entered a partnership to develop and later sell property at 1409 Cola Drive; petitioners retained title until sale.
- Artifact, LLC (owned by Felipe Valdes) borrowed $400,000 from iTech AG, defaulted, and afterward Artifact and iTech entered a joint-venture agreement in which Artifact promised to secure iTech by a deed of trust on the McLean property (petitioners were not a party).
- iTech sued the petitioners in Fairfax Circuit Court seeking specific performance of the joint-venture agreement and recorded a lis pendens; the lis pendens caused prospective buyers to refuse to close and sale proceeds were placed in escrow.
- Petitioners sued iTech and Robbins Law Group for malicious abuse of process, slander of title, tortious interference with contractual relations, and civil conspiracy based on the lis pendens; defendants demurred claiming absolute privilege.
- The circuit court sustained the demurrers (holding lis pendens info is absolutely privileged), dismissed with prejudice; the Supreme Court of Virginia reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a demurrer may be sustained based on absolute privilege | Absolute privilege is an affirmative defense and cannot be resolved on demurrer | Filing lis pendens is absolutely privileged so demurrer proper | Court: Demurrer was improper to decide an affirmative defense; circuit court erred |
| Whether the filing/contents of a lis pendens are absolutely privileged (defamation/slander of title) | Lis pendens here was not relevant/pertinent to the action and was maliciously used to harm title | Lis pendens is incidental to the judicial proceeding and republishes complaint information, so it is absolutely privileged | Court: Lis pendens can be absolutely privileged for defamation if its contents are "relevant and pertinent"; relevancy is a factual inquiry for the trial court |
| Whether absolute privilege extends to non‑defamation torts (abuse of process, tortious interference, civil conspiracy) | Privilege should not bar these separate torts | Privilege should shield all claims arising from the lis pendens filing | Court: Declines to extend absolute privilege beyond defamation; does not bar non‑defamation torts |
| Whether the lis pendens met the relevancy/pertinency requirement for the privilege | Allegations, if true, show the lis pendens was unrelated to title and abusive | Lis pendens simply republished complaint matters and thus was relevant | Court: Relevancy is fact‑driven; trial court must decide; noted petitioners' facts may be sufficient to defeat privilege |
Key Cases Cited
- Squire v. Virginia Hous. Dev. Auth., 287 Va. 507 (2014) (standard of review for demurrer)
- Mansfield v. Bernabei, 284 Va. 116 (2012) (demurrer tests facial sufficiency of complaint)
- A.H. ex rel. C.H. v. Church of God in Christ, Inc., 297 Va. 604 (2019) (affirmative defenses not decided on demurrer)
- Duggin v. Adams, 234 Va. 221 (1987) (same principle on demurrers and defenses)
- Isle of Wight County v. Nogeic, 281 Va. 140 (2011) (absolute privilege characterized as an affirmative defense)
- Lindeman v. Lesnick, 268 Va. 532 (2004) (absolute privilege applies to statements in judicial proceedings that are relevant and pertinent)
- Penick v. Ratcliffe, 149 Va. 618 (1927) (scope and purpose of absolute privilege; relevancy standard)
- Watt v. McKelvie, 219 Va. 645 (1978) (public policy basis for absolute privilege)
- Donohoe Constr. Co. v. Mt. Vernon Assocs., 235 Va. 531 (1988) (privilege applied to slander of title from mechanic's lien; not applied to abuse of process)
- Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229 (Ky. 2013) (arguments supporting application of absolute privilege to lis pendens)