Present: All the Justices
J. WARREN TOMLIN, ET AL.
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 951427 April 19, 1996
PATSYE D. McKENZIE, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
William H. Oast, Jr., Judge
In this appeal, we consider whether the trial court erred in
sustaining a plea in bar asserting that a clinical social worker
conducting court-referred family therapy was immune from
liability for various claims of malpractice and defamation.
J. Warren Tomlin, individually and as next friend for his
minor daughter, Alexandria A. Tomlin, and his wife, Carolyn D.
Hope-Tomlin (collectively Tomlin) filed a three-count motion for
judgment against Patsye D. McKenzie (McKenzie), a licensed
clinical social worker, and Family Marital Guidance Clinic, now
F.M.G.C., P.C., a professional corporation in which McKenzie is
the principal participant and sole shareholder. The motion for
judgment alleged that McKenzie provided family therapy to Mr.
Tomlin, Alexandria and Darlene K. Giffin (Giffin), Mr. Tomlin's
former wife and Alexandria's mother, pursuant to an order of
referral by the Juvenile and Domestic Relations District Court of
the City of Chesapeake arising out of divorce and custody
proceedings. The motion for judgment further alleged that in the
course of providing that therapy, McKenzie intentionally and
maliciously committed various acts amounting to malpractice and
defamation. The motion for judgment sought compensatory damages
of $11,000,000 and punitive damages of $350,000.
The defendants filed a plea in bar seeking dismissal of the
suit on the ground that McKenzie should be afforded immunity
under common law and statutory theories. McKenzie asserted that
common law sovereign immunity protects her from civil suits for
actions performed in her capacity as a court-appointed officer,
"similar to a Commonwealth's attorney or judge." McKenzie
further asserted that pursuant to Code § 63.1-248.5 she is
"absolutely immune for her participation in [the] judicial
proceeding regarding Alexandria Tomlin."
No evidence was taken at the subsequent hearing on the plea.
The trial court dismissed the motion for judgment "upon hearing
argument of counsel and reviewing the papers filed herein, and
for good cause shown." We awarded Tomlin an appeal and, for the
following reasons, we will reverse the judgment.
Our resolution of the issue before us is guided by well
established principles. The defensive plea in bar shortens the
litigation by reducing it to a distinct issue of fact which, if
proven, creates a bar to the plaintiff's right of recovery. The
moving party carries the burden of proof on that issue of fact.
See Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 909
(1961). Where no evidence is taken in support of the plea, the
trial court, and the appellate court upon review, must rely
solely upon the pleadings in resolving the issue presented. See
Weichert Company of Va., Inc. v. First Commercial Bank, 246 Va.
108, 109, 431 S.E.2d 308, 309 (1993). When considering the
pleadings, "the facts stated in the plaintiffs' motion for
judgment [are] deemed true." Glascock v. Laserna, 247 Va. 108,
109, 439 S.E.2d 380, 380 (1994).
Applying these principles, we initially address the immunity
granted by Code § 63.1-248.5. That Code section provides:
Any person making a report pursuant to Code
§ 63.1-248.3, a complaint pursuant to § 63.1-248.4, or
who takes a child into custody pursuant to § 63.1-
248.9, or who participates in a judicial proceeding
resulting therefrom shall be immune from any civil or
criminal liability in connection therewith, unless it
is proven that such person acted in bad faith or with
malicious intention. [Emphasis added.]
Although the plea in bar specifically asserts that under
this section "McKenzie is absolutely immune for her participation
in [the] judicial proceeding regarding Alexandria," the plain
language of the section refutes that assertion of absolute
immunity. In any event, on appeal McKenzie now asserts that this
section is "irrelevant to the issue now before the Court" because
her appointment was not controlled by the statutes referenced in
this section. We need not resolve that contention. Even if we
were to accept McKenzie's belated assertion that Code
§ 63.1-248.5 is not applicable to her circumstances, we would
nonetheless find that the allegations in the motion for judgment,
accepted as true for purposes of resolving the plea in bar, would
defeat McKenzie's other claims of immunity as well.
The issue of fact, as expressed in her appellate brief, upon
which McKenzie apparently relies as a bar to the suit is that
"[a]ll of the acts of which Tomlin complains were performed by
McKenzie in her capacity as an agent of the Court." This
reliance is misplaced for two reasons. First, where sovereign
immunity is claimed by an agent of the state, rather than by the
state as an entity, it will not be extended to acts which
constitute a wanton and intentional deviation from the duties the
agent has been assigned to undertake. See James v. Jane, 221 Va.
43, 53, 267 S.E.2d 108, 113 (1980); see also Elder v. Holland,
208 Va. 15, 19-20, 155 S.E.2d 369, 372-73 (1967). Accordingly,
accepting as true the allegations in the first two counts of the
motion for judgment that McKenzie conspired with Giffin to
violate court orders and to interfere with Mr. Tomlin's
visitation with his child, and engaged in other intentional and
wanton misconduct, we think the trial court erred in applying
sovereign immunity on this state of the record.
Second, and more importantly, the motion for judgment
alleges acts of professional malpractice and defamation which, if
accepted as true for purposes of the plea in bar and if
ultimately proven at trial, are entirely inconsistent with the
proper conduct of a family therapy practitioner. Such conduct
would be no less unacceptable, and perhaps even more egregious,
if one were subjected to it under the compulsion of a
court-ordered referral. Conduct outside the scope of the
employment is not protected by sovereign immunity. See Messina
v. Burden, 228 Va. 301, 311, 321 S.E.2d 657, 662 (1984).
Similarly, conduct outside the scope of a court-ordered referral
has no valid claim to sovereign immunity.
In short, because McKenzie argued her plea in bar without
presenting evidence, the trial court was required to accept as
true the allegations of the motion for judgment. Those
allegations concerned malicious, intentional tortious acts
outside the scope of McKenzie's court-appointed role and,
therefore, the trial court should have denied the plea in bar.
Accordingly, we will reverse the trial court's dismissal order
and remand for further proceedings.
Reversed and remanded.