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Date and Time: Thursday, February 11, 2021 3:12:00 AM EST

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Cashion v. Smith

, 286 Va. 327

Client/Matter: -None-

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Cashion v. Smith

Supreme Court of Virginia

October 31, 2013, Decided

Record No. 121797

Reporter
286 Va. 327 *; 749 S.E.2d 526 **; 2013 Va. LEXIS 139 ***; 2013 WL 5833265

BRADLEY J. CASHION v. ROBERT S. SMITH, ET AL.

Prior History: [***1] FROM THE CIRCUIT COURT OF
THE CITY OF ROANOKE. Jonathan M. Apgar, Judge.

Cashion v. Smith, 2010 Va. Cir. LEXIS 240, 82 Va. Cir.
64 (2010)

Disposition: Affirmed in part, reversed in part, and
remanded.

Core Terms

endorsement, patient, euthanasia, Demurrer, waived,
rhetorical, hyperbole, non-euthanasia, resuscitation,
abandon, non-actionable, defamation, euthanize,
malice, spite, purposefully, memorialize, acquiesced

Case Summary

Overview
HOLDINGS: [1]-A surgeon’s statement that a patient
could have made it with better resuscitation was not an
opinion and was actionable as it directly attributed the
patient’s death to the anesthesiologist, insinuating that
he either failed to perform some action necessary to the
patient’s recovery or acted affirmatively to prevent it;
whether the quality of the anesthesiologist’s treatment

caused or contributed to the patient’s death was an
allegation of fact capable of being proven true or false;
[2]-The surgeon’s statement that the anesthesiologist
determined from the beginning that the patient wasn’t
going to make it and purposefully didn’t resuscitate him
was actionable as it accused the anesthesiologist of
purposefully causing the death by withholding treatment;
[3]-Qualified privilege could not be lost or abused only
upon a showing of personal spite or ill will.

Outcome
Judgment affirmed, in part, and reversed, in part. Matter
remanded.

LexisNexis® Headnotes

Civil Procedure > Appeals > Reviewability of Lower
Court Decisions > Preservation for Review

HN1[ ] Reviewability of Lower Court Decisions,
Preservation for Review

See Va. Code Ann. § 8.01-384(A).

Civil Procedure > Appeals > Reviewability of Lower
Court Decisions > Preservation for Review

HN2[ ] Reviewability of Lower Court Decisions,
Preservation for Review

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Page 2 of 12

The state’s highest court has on several occasions
interpreted Va. Code Ann. § 8.01-384(A) to clarify the
ambiguity of what constitutes a waiver by express
written agreement in an endorsement of an order. The
state’s highest court has repeatedly held that once a
litigant informs the circuit court of his or her legal
argument, in order for a waiver to occur within the
meaning of § 8.01-384(A), the record must affirmatively
show that the party who has asserted an objection has
abandoned the objection or has demonstrated by his
conduct the intent to abandon that objection.

Civil Procedure > … > Affirmative
Defenses > Statute of Limitations > Waiver

HN3[ ] Statute of Limitations, Waiver

Waiver is the voluntary and intentional abandonment of
a known legal right, advantage, or privilege. The
essential elements of waiver are knowledge of the facts
basic to the exercise of the right and intent to relinquish
that right. Waiver of a legal right will be implied only
upon clear and unmistakable proof of the intention to
waive such right for the essence of waiver is voluntary
choice.

Civil Procedure > Appeals > Reviewability of Lower
Court Decisions > Preservation for Review

HN4[ ] Reviewability of Lower Court Decisions,
Preservation for Review

The Virginia general assembly amended Va. Code Ann.
§ 8.01-384(A) to add the provision, “no party shall be
deemed to have agreed to, or acquiesced in, any written
order of a trial court so as to forfeit his right to contest
such order on appeal except by express written
agreement in his endorsement of the order” in its
session following the state’s highest court’s Lamar Corp.
decision. 1992 Va. Acts ch. 564.

Civil Procedure > Appeals > Standards of
Review > De Novo Review

Torts > … > Defamation > Defenses > Fair
Comment &

Opinion

Civil Procedure > Appeals > Standards of
Review > Questions of Fact & Law

HN5[ ] Standards of Review, De Novo Review

The question of whether certain statements were
expressions of opinion for defamation purposes is a
question of law. The state’s highest court therefore
reviews the circuit court’s ruling de novo.

Torts > … > Defamation > Defenses > Fair
Comment & Opinion

HN6[ ] Defenses, Fair Comment & Opinion

When a statement is relative in nature and depends
largely on a speaker’s viewpoint, that statement is an
expression of opinion. However, statements may be
actionable if they have a provably false factual
connotation and thus are capable of being proven true
or false.

Torts > … > Defenses > Privileges > Qualified

Privileges

HN7[ ] Privileges, Qualified Privileges

A qualified privilege attaches to communications
between persons on a subject in which the persons
have an interest or duty. Whether a communication is
privileged is a question of law.

Torts > … > Defenses > Privileges > Qualified
Privileges

HN8[ ] Privileges, Qualified Privileges

The state’s highest court has on occasion previously
included good faith as a factor in the determination of
whether a qualified privilege exists. However, the state’s
highest court recognizes that the inclusion of good faith
in this context is unwarranted, and hereby overrules the
inclusion of that language in Great Coastal Express, Inc.
v. Ellington, 334 S.E.2d 846 (Va. 1985) (citing Taylor v.
Grace, 184 S.E. 211 (Va. 1936)).

Civil Procedure > Trials > Jury Trials > Province of
Court & Jury

Torts > … > Defenses > Privileges > Qualified

286 Va. 327, *327; 749 S.E.2d 526, **526; 2013 Va. LEXIS 139, ***1

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Privileges

HN9[ ] Jury Trials, Province of Court & Jury

The question of whether a statement was made in good
faith is a question of fact for the jury to decide when
determining whether a qualified privilege has been lost
or abused, and is not a question of law for the court to
answer in deciding whether a privilege has attached.
The state’s highest court reaffirms that approach.

Evidence > Burdens of Proof > Allocation

Torts > … > Defenses > Privileges > Qualified
Privileges

Evidence > Burdens of Proof > Clear & Convincing
Proof

HN10[ ] Burdens of Proof, Allocation

Once a qualified privilege has attached to a
communication, the plaintiff has the burden to prove that
the privilege has been lost or abused, which must be
shown by clear and convincing proof.

Evidence > Burdens of Proof > Clear & Convincing
Proof

Governments > Courts > Common Law

Torts > Intentional Torts > Abuse of
Process > Elements

Torts > … > Defenses > Privileges > Qualified
Privileges

Torts > … > Defamation > Elements > General
Overview

HN11[ ] Burdens of Proof, Clear & Convincing
Proof

The state’s highest court has approved a jury instruction
on the elements of common law malice that will serve to
defeat a qualified privilege that incorporate language
used in a number of its earlier cases which discuss
elements of common law malice and abuse of privilege.
A non-exhaustive list of such elements included a
showing that: (1) the statements were made with
knowledge that they were false or with reckless

disregard for their truth, (2) the statements were
communicated to third parties who have no duty or
interest in the subject matter, (3) the statements were
motivated by personal spite or ill will, (4) the statements
included strong or violent language disproportionate to
the occasion, or (5) the statements were not made in
good faith. The state’s highest court has held that any
one of the elements if proved by clear and convincing
evidence, defeats the privilege. The state’s highest court
reiterates the rule of Great Coastal Express. Personal
spite or ill will, independent of the occasion on which it
was made, is certainly one of the elements that will
establish common law malice. However, it is not the
only element, and any one of the elements, if pled and
proved, will suffice. The question of whether a
defendant has lost or abused the privilege is a question
of fact for the jury.

Civil Procedure > Trials > Jury Trials > Province of
Court & Jury

Torts > … > Defamation > Defenses > Exaggeration
s & Imaginative Commentary

HN12[ ] Jury Trials, Province of Court & Jury

Under Virginia law, rhetorical hyperbole is not
defamatory. Statements characterized as rhetorical
hyperbole are those from which no reasonable inference
could be drawn that the individual identified in the
statements, as a matter of fact, engaged in the conduct
described. Whether a statement constitutes rhetorical
hyperbole is a question of law for the court to determine.

Counsel: Monica Taylor Monday (E. Scott Austin; Peter
G. Irot; James J. O’Keeffe, IV; Gentry Locke Rakes &
Moore, on briefs), for appellant.

Frank K. Friedman (Agnis C. Chakravorty; Erin B.
Ashwell; Woods Rogers, on brief), for appellee Carilion
Medical Center.

(Paul G. Beers; Glenn, Feldmann, Darby & Goodlatte,
on brief), for appellee Robert S. Smith, M.D.

286 Va. 327, *327; 749 S.E.2d 526, **526; 2013 Va. LEXIS 139, ***1

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Page 4 of 12

Judges: OPINION BY JUSTICE WILLIAM C. MIMS.
JUSTICE McCLANAHAN, dissenting. JUSTICE
POWELL, with whom JUSTICE GOODWYN joins,
concurring in part and dissenting in part, and with whom
JUSTICE McCLANAHAN joins in part.

Opinion by: WILLIAM C. MIMS

Opinion

[*331] [**528] PRESENT: All the Justices

OPINION BY JUSTICE WILLIAM C. MIMS

In this appeal, we consider whether an endorsement of
an order withdrew or waived issues for appeal under
Code § 8.01-384(A), whether allegedly defamatory
statements were non-actionable expressions of opinion
or rhetorical hyperbole, and whether such statements
were protected by qualified privilege.

I. BACKGROUND AND MATERIAL PROCEEDINGS
BELOW

In November 2009, Dr. Robert Smith, a trauma surgeon,
and Dr. Bradley Cashion, an anesthesiologist, provided
emergency care to a critically injured patient. Dr. Smith
is employed full-time by Carilion Medical Center
(“Carilion”). Dr. Cashion was employed by
Anesthesiology Consultants of Virginia, Inc., which
provides services to Carilion. Despite the efforts of Dr.
Smith and Dr. Cashion, the patient died during surgery.

[*332] Following the patient’s death, [***2] Dr. Smith
criticized Dr. Cashion in the operating room. Dr. Smith,
in front of several other members of the operating team,
made the following remarks to Dr. Cashion:1

[**529] “He could have made it with better
resuscitation.”
“This was a very poor effort.”
“You didn’t really try.”
“You gave up on

him.”

“You determined from the beginning that he wasn’t
going to make it and purposefully didn’t resuscitate

1 We refer to these statements collectively as “the non-
euthanasia statements.”

him.”

Immediately thereafter, Dr. Smith addressed Dr.
Cashion in the hallway outside the operating room,
stating: “You just euthanized my patient.” Nurse Sherri
Zwart, who also had been in the operating room, and
Dr. James Crawford, Chief of Anesthesia at Carilion,
were present in the hallway at the time. In a subsequent
meeting that evening between Drs. Smith, Cashion, and
Crawford, Dr. Smith repeatedly stated that Dr. Cashion
“euthanized” the patient.

Dr. Cashion filed an amended complaint alleging
defamation and defamation per se against Dr. Smith
and Carilion, which Dr. Cashion alleged to be liable
under a theory of respondeat superior. Dr. Smith and
Carilion filed demurrers and pleas in bar asserting,
among other things, [***3] that Dr. Smith’s statements
were non-actionable expressions of opinion or rhetorical
hyperbole. They also asserted that qualified privilege
applied to the statements yet the amended complaint
failed to allege facts establishing common law malice to
overcome the privilege.

After a hearing, the circuit court entered an order (“the
Demurrer Order”) sustaining the demurrers and granting
the pleas in bar as to the non-euthanasia statements
on the ground that they were non-actionable
expressions of opinion. Concomitantly, the court
overruled the demurrers and denied the pleas in bar as
to the euthanasia statements. Dr. Smith and Carilion
annotated the Demurrer Order with their objections on
the grounds asserted in their pleadings and at the
hearing. Dr. Cashion endorsed it “WE ASK FOR THIS.”

Following discovery, Dr. Smith and Carilion moved for
summary judgment, again asserting their rhetorical
hyperbole and qualified privilege arguments. Dr.
Cashion responded by arguing, among other [*333]
things, that qualified privilege did not apply because Dr.
Smith did not make the euthanasia statements in good
faith and was not discussing the care of the patient
when he made them.

After a hearing, the circuit [***4] court ruled that the
euthanasia statements were not rhetorical hyperbole.
However, it ruled that qualified privilege applied to Dr.
Smith’s statements and there was no evidence of
common law malice on the part of Dr. Smith necessary
to overcome the privilege. Accordingly, it awarded Dr.
Smith and Carilion summary judgment and dismissed
the amended complaint. We awarded Dr. Cashion this
appeal.

286 Va. 327, *327; 749 S.E.2d 526, **526; 2013 Va. LEXIS 139, ***1

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II. ANALYSIS

A. OPINION OR STATEMENTS OF FACT

Dr. Cashion asserts the circuit court erred by sustaining
the demurrers and pleas in bar as to the non-
euthanasia statements and ruling that they were non-
actionable expressions of opinion. As an initial matter,
Dr. Smith and Carilion argue that he has withdrawn or
waived this argument for appeal under Code § 8.01-
384(A) because he endorsed the Demurrer Order “WE
ASK FOR THIS.” They assert that endorsement stated
his express written agreement with the rulings it
contained. We disagree.

Code § 8.01-384(A) provides in relevant part that

HN1[ ] No party shall be deemed to have agreed
to, or acquiesced in, any written order of a trial
court so as to forfeit his right to contest such order
on appeal except by express written agreement in
his endorsement of the order. [***5] Arguments
made at trial via written pleading, memorandum,
recital of objections in a final order, oral argument
reduced to transcript, or agreed written statements
of facts shall, unless expressly withdrawn or
waived, be deemed preserved therein for assertion
on appeal.

HN2[ ] We have on several occasions interpreted this
statute to clarify the ambiguity of what constitutes a
waiver by “express written agreement in [an]
endorsement of [an] order.” We have repeatedly held
that “once a litigant informs the circuit court of his or her
legal argument, in order for a waiver to [**530] occur
within the meaning of Code § 8.01-384(A), the record
must affirmatively show that the party who has asserted
an objection has abandoned the objection or has
demonstrated by his conduct the intent to abandon that
objection.” Kellermann [*334] v. McDonough, 278 Va.
478, 491, 684 S.E.2d 786, 792 (2009) (quoting Helms v.
Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 (2009))
(internal alterations and quotation marks omitted).

We discussed waiver by endorsement at length in
Chawla v. BurgerBusters, Inc., 255 Va. 616, 499 S.E.2d
829 (1998). In that case, the appellants assigned error
to the circuit court’s ruling that they bore the
[***6] burden of proof on the question of the
reasonableness of a claim for attorneys’ fees. They
noted objections to the interlocutory order effectuating
that ruling but when the court restated it in a subsequent
interlocutory order, they endorsed the second order as

“SEEN AND AGREED.” They again noted their
objection to the ruling on the final order. Id. at 621-22,
499 S.E.2d at 832.

On appeal, the appellee argued the “SEEN AND
AGREED” endorsement waived the issue. We
disagreed, holding:

HN3[ ] Waiver is the voluntary and intentional
abandonment of a known legal right, advantage, or
privilege. Weidman v. Babcock, 241 Va. 40, 45, 400
S.E.2d 164, 167, 7 Va. Law Rep. 1273 (1991); Fox
v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707, 4
Va. Law Rep. 1248 (1987). The essential elements
of waiver are knowledge of the facts basic to the
exercise of the right and intent to relinquish that
right. Weidman, 241 Va. at 45, 400 S.E.2d at 167;
Fox, 234 Va. at 425, 362 S.E.2d at 707. Waiver of a
legal right will be implied only upon clear and
unmistakable proof of the intention to waive such
right for the essence of waiver is voluntary choice.
Weidman, 241 Va. at 45, 400 S.E.2d at 167; May v.
Martin, 205 Va. 397, 404, 137 S.E.2d 860, 865
(1964).

In the present [***7] case, the [appellants] made
clear to the trial court [their] objection to the ruling
respecting the burden of proof issue and never
abandoned or evidenced an intent to abandon the
objection. Thus, [they] preserved the issue for
appeal.

Id. at 622-23, 499 S.E.2d at 833 (emphasis added). In
short, the endorsement itself did not constitute a waiver.

We reached the same result in Helms, even though the
appellant never noted an objection on any order. In that
case, the appellants assigned error to the circuit court’s
ruling that they had failed to prove adverse possession
by clear and convincing evidence. They endorsed as
“Seen” the court’s final order effectuating that ruling.
[*335] 277 Va. at 5-6, 671 S.E.2d at 129. Noting that
the appellants had argued adverse possession in a
written memorandum, we held that the court was
thereby informed of their position, which they had not
subsequently expressly withdrawn or waived. Id. at 7,
671 S.E.2d at 129-30. Again, the endorsement itself did
not constitute a waiver.

We considered the endorsement “Seen and consented
to” in Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239
(2010). In that case, the appellee assigned cross-error
in an appeal from the circuit [***8] court’s award of

286 Va. 327, *333; 749 S.E.2d 526, **529; 2013 Va. LEXIS 139, ***4

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summary judgment in favor of the appellee. Considering
whether the appellee’s endorsement waived the issue
argued in the assignment of cross-error, we noted that
the order contained elements favorable to both parties.
We concluded that the appellee’s endorsement “Seen
and consented to” indicated his consent only to the
elements favorable to him, just as the appellant’s
endorsement “Seen and objected to” objected only to
the elements adverse to her. Id. at 624, 692 S.E.2d 243
(alterations omitted). We also again observed that the
appellee’s legal argument had been presented to the
court in written memoranda and acquiescence to the
entry of an order partly in his favor did not affirmatively
waive or abandon it.

The most recent case in which we considered the effect
of a “WE ASK FOR THIS” endorsement was Lamar
Corp. v. City of Richmond, 241 Va. 346, 402 S.E.2d 31,
7 Va. Law Rep. 1776 (1991).2 However, our analysis

2 In Lamar Corp., the City of Richmond condemned a parcel of
real property. Portions of the parcel had been leased to two
billboard advertising companies. The lessees were not parties
to the condemnation proceeding. To the contrary, they entered
a special appearance to assert that the city was required to
institute a separate condemnation proceeding against them to
acquire their interests in the parcels. Id. at 348-49, 402 S.E.2d
at 32.

The city and the landowners ultimately reached an agreement
as to the value of just compensation. The circuit court entered
a consent order awarding the landowners $360,000 for “all
right, title and interest in the property and property rights
acquired” in the condemnation proceeding. The order noted
that the lessees appeared by special appearance, “without
intending to subject either [of them] to the jurisdiction of th[e
c]ourt in this action,” and further directed that “the compromise
and settlement between the City and [the landowners] shall
have no effect upon further proceedings by [***10] the City
against [the lessees] and neither the City nor [the lessees]
shall be prejudiced in any way by such settlement in
subsequent proceedings between the City and” the lessees.
Although the landowners and lessees endorsed the order “WE
ASK FOR THIS,” the lessees included “(special appearance)”
in their endorsement.

When the city subsequently obtained permission from the
court to remove the lessees’ billboards from the parcel, the
lessees appealed. We held that a lessee is entitled by virtue of
his lease to a portion of a landowner’s award of compensation
following a condemnation proceeding. Id. at 350, 402 S.E.2d
at 33. We also held that a lessee who improves a parcel by
constructing a fixture annexed to it (such as the billboards) is
entitled to a portion of the landowner’s award of compensation
if the parcel is subsequently taken by condemnation. Id. at

[*336] did not address [**531] Code § 8.01-384(A).
The statute did not then include the provision, “[n]o party
shall be deemed to have agreed to, or acquiesced in,
any written order of a trial court so as to forfeit his right
to contest such order on appeal except by express
written agreement in [***9] his endorsement of the
order.” HN4[ ] The General Assembly amended Code
§ 8.01-384(A) to add this language in its session
following our Lamar Corp. decision. 1992 Acts ch. 564.

Like the order in Johnson, the Demurrer Order contains
elements favorable and unfavorable to Dr. Cashion.
Although it sustains demurrers by Dr. Smith and Carilion
to the non-euthanasia statements, it overrules their
demurrers to the accusations of euthanasia. We have
noted that “[i]t is entirely proper for a party to request
that a court memorialize in an order a ruling made from
the bench, even when that ruling is contrary to the
party’s interest.” Levisa Coal Co. v. Consolidation Coal
Co., 276 Va. 44, 56 n.4, 662 S.E.2d 44, 50 n.4 (2008).
Dr. Cashion’s “WE ASK FOR THIS” endorsement on the
Demurrer Order therefore reflects only his request that
the court enter an order memorializing its ruling, not his
agreement to the portion of the Demurrer Order adverse
to him. It therefore does not constitute an “express
written agreement” to waive this argument on appeal.

HN5[ ] The question of whether the non-euthanasia
statements were expressions of opinion is a question of
law. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40,
47, 670 S.E.2d 746, 750 (2009). We therefore review
the circuit court’s ruling de novo. Board of Supervisors v.
Davenport & Co. LLC, 285 Va. 580, 585, 742 S.E.2d 59,
61 (2013).

HN6[ ] “When [***12] a statement is relative in nature
and depends largely on a speaker’s viewpoint, that
statement is an expression of opinion.” Hyland, 277 Va.
at 47, 670 S.E.2d at 750. However, statements may be
actionable if they have a “‘provably false factual
connotation'” and thus “are capable of being proven true
or false.” Fuste v. Riverside Healthcare Ass’n, 265 Va.
127, 575 S.E.2d 858, 861-62 (2003) (quoting WJLA-TV
v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392
(2002)).

352, 402 S.E.2d at 34. Nevertheless, we concluded that the
lessees had waived any claim on the $360,000 awarded to the
landowners because they had “asked for and consented to”
the consent order, even though they had only entered a
special appearance to argue that the city was required to
commence a separate condemnation proceeding [***11] to
acquire their interests. Id.

286 Va. 327, *335; 749 S.E.2d 526, **530; 2013 Va. LEXIS 139, ***8

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Page 7 of 12

The statements “[t]his was a very poor effort,” “[y]ou
didn’t really try,” and “[y]ou gave up on him,” fall into the
former [*337] class because they are subjective and
wholly depend on Dr. Smith’s viewpoint. However, the
statements that the patient “could have made it with
better resuscitation” and “[y]ou determined from the
beginning that he wasn’t going to make it and
purposefully didn’t resuscitate him” do not.

The statement that the patient “could have made it with
better resuscitation” directly attributes the patient’s
death to Dr. Cashion, insinuating that he either failed
[**532] to perform some action necessary to the
patient’s recovery or acted affirmatively to prevent it.
Insinuations may constitute defamatory statements.
Hyland, 277 Va. at 47, 670 S.E.2d at 751. [***13] The
statement asserts that the patient was capable of
surviving, but for the quality of Dr. Cashion’s treatment.
Whether the quality of Dr. Cashion’s treatment caused
or even contributed to the patient’s death is an
allegation of fact capable of being proven true or false,
such as through expert opinion testimony. The second
statement goes further, not only attributing the patient’s
death to Dr. Cashion’s action or inaction but accusing
him of purposefully causing the death by withholding
treatment. Such a statement is indistinguishable from
the alleged accusations of euthanasia.

Accordingly, the circuit court erred by ruling that these
two statements were non-actionable expressions of
opinion. We therefore will reverse this portion of its
judgment and remand for further proceedings.

B. QUALIFIED PRIVILEGE

Dr. Cashion also asserts that the circuit court erred by
ruling that Dr. Smith’s euthanasia statements are
protected by a qualified privilege and that Dr. Smith did
not lose or abuse that privilege. HN7[ ] A qualified
privilege attaches to “[c]ommunications between
persons on a subject in which the persons have an
interest or duty.” Larimore v. Blaylock, 259 Va. 568, 572,
528 S.E.2d 119, 121 (2000). [***14] Whether a
communication is privileged is a question of law. Fuste,
265 Va. at 135, 575 S.E.2d at 863.

Dr. Smith’s statements were communications on the
subject of Dr. Cashion’s care of the patient. Dr. Smith,
Dr. Cashion, and the medical professionals in the
operating room during the patient’s treatment all had a
continuing interest in the level of care that had been
provided and the cause of death. Dr. Crawford, as the
Chief of Anesthesiology, is charged with managing and
supervising the anesthesiologists; thus, he too shared

an interest in Dr. Cashion’s performance [*338] in the
operating room. The circuit court therefore correctly
determined that Dr. Smith’s euthanasia statements
were privileged as a matter of law.

Dr. Cashion argues that qualified privilege did not apply
because Dr. Smith’s statements were not made in good
faith. HN8[ ] This Court has on occasion previously
included good faith as a factor in the determination of
whether a qualified privilege exists. Great Coastal
Express, Inc. v. Ellington, 230 Va. 142, 153, 334 S.E.2d
846, 853 (1985) (citing Taylor v. Grace, 166 Va. 138,
144, 184 S.E. 211, 213 (1936)). However, we recognize
today that the inclusion of good faith in this context
[***15] is unwarranted, and hereby overrule the
inclusion of that language.

Indeed, historically, this Court has repeatedly
recognized that HN9[ ] the question of whether a
statement was made in good faith is a question of fact
for the jury to decide when determining whether a
qualified privilege has been lost or abused, and is not a
question of law for the court to answer in deciding
whether a privilege has attached. Aylor v. Gibbs, 143
Va. 644, 654, 129 S.E. 696, 699 (1925); Farley v.
Thalhimer, 103 Va. 504, 507-08, 49 S.E. 644, 646
(1905); Tyree v. Harrison, 100 Va. 540, 542, 42 S.E.
295, 295 (1902); Strode v. Clement, 90 Va. 553, 556-57,
19 S.E. 177, 178 (1894). We reaffirm that approach.

HN10[ ] Once a qualified privilege has attached to a
communication, the plaintiff has the burden to prove that
the privilege has been lost or abused, Preston v. Land,
220 Va. 118, 121, 255 S.E.2d 509, 511 (1979), which
must be shown by clear and convincing proof. See
Government Micro Res., Inc. v. Jackson, 271 Va. 29,
43, 624 S.E.2d 63, 71 (2006). In this case, the circuit
court determined that a qualified privilege may be lost
only by clear and convincing evidence of personal spite
or ill will, independent of the occasion [***16] on which
the communication was made. Dr. Cashion argues this
ruling was erroneous because the issue of whether
there was malice is a question of fact for the jury, and a
showing of pre-existing personal spite or ill will is only
one of several ways in which a privilege can be lost. We
agree.

In Great Coastal Express, Inc. v. Ellington, 230 Va. 142,
154, 334 S.E.2d 846, [**533] 854 (1985), HN11[ ] we
approved a jury instruction on the elements of common
law malice that will serve to defeat a qualified privilege
that “incorporate[d] language used in a number of our
earlier cases which discuss elements of common law

286 Va. 327, *336; 749 S.E.2d 526, **531; 2013 Va. LEXIS 139, ***11

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Page 8 of 12

malice and [*339] abuse of privilege.” A non-
exhaustive list of such elements included a showing
that: (1) the statements were made with knowledge that
they were false or with reckless disregard for their truth,
Rayth eon Technical Servs. Co. v. Hyland, 273 Va. 292,
301, 641 S.E.2d 84, 89-90 (2007); (2) the “statements
[we]re communicated to third parties who have no duty
or interest in the subject matter,” Larimore, 259 Va. at
575, 528 S.E.2d at 122; (3) the statements were
motivated by personal spite or ill will, Preston, 220 Va.
at 120-21, 255 S.E.2d at 511; (4) the statements
included “strong [***17] or violent language
disproportionate to the occasion,” Story v. Norfolk-
Portsmouth Newspapers, Inc., 202 Va. 588, 591, 118
S.E.2d 668, 670 (1961); or (5) the statements were not
made in good faith, Chalkley v. Atlantic Coast Line R.R.
Co., 150 Va. 301, 325, 143 S.E. 631, 637-38 (1928). We
held that “[a]ny one of the elements if proved” by clear
and convincing evidence, defeats the privilege. Great
Coastal Express, 230 Va. at 154, 334 S.E.2d at 854.

Today we reiterate the rule of Great Coastal Express.
Personal spite or ill will, independent of the occasion on
which it was made, is certainly one of the elements that
will establish common law malice. However, it is not the
only element, and any one of the elements, if pled and
proved, will suffice. Id. at 154, 334 S.E.2d at 854.

The question of whether a defendant has lost or abused
the privilege is a question of fact for the jury. Fuste, 265
Va. at 135, 575 S.E.2d at 863 (collecting cases).
Because the circuit court limited the elements capable
of defeating a qualified privilege to the showing of
personal spite or ill will, independent of the occasion on
which it was made, it erred by deciding as a matter of
law that Dr. Smith did not [***18] lose or abuse the
privilege. We therefore will reverse this portion of the
circuit court’s judgment and remand for further
proceedings.

C. RHETORICAL HYPERBOLE

Dr. Smith and Carilion assert in assignments of cross-
error that Dr. Smith’s statements accusing Dr. Cashion
of committing euthanasia constitute nothing more than
rhetorical hyperbole and therefore are not actionable.
We disagree.

HN12[ ] Under Virginia law, rhetorical hyperbole is not
defamatory. Yeagle v. Collegiate Times, 255 Va. 293,
295-96, 497 S.E.2d 136, 137 (1998). Statements
characterized as rhetorical hyperbole are those from
which “no reasonable inference could be drawn that the
[*340] individual identified in the statements, as a

matter of fact, engaged in the conduct described.” Id. at
296, 497 S.E.2d at 137. Whether a statement
constitutes rhetorical hyperbole is a question of law for
the court to determine. Id. at 296, 497 S.E.2d at 138.

In this case, as noted above, some of Dr. Smith’s
statements can reasonably be interpreted as allegations
of fact capable of being proven true or false.
Considering the context in which the statements were
made, a listener could believe that Dr. Cashion engaged
in the conduct Dr. Smith attributed [***19] to him, i.e.,
euthanizing the patient or causing or contributing to the
patient’s death by providing deficient care. Dr. Smith’s
position as a surgeon, having just left the operating
room where the patient died, and his relationship to Dr.
Cashion, an anesthesiologist whose participation in the
surgery afforded him the opportunity to cause or
contribute to the patient’s death, support the inference
that Dr. Smith was conveying what he believed to be
factual information about Dr. Cashion. Thus, we agree
with the circuit court’s determination that the statements
were not rhetorical hyperbole. We therefore will affirm
this portion of the circuit court’s judgment.

III. CONCLUSION

For the foregoing reasons, we will affirm the circuit
court’s rulings that Dr. Smith’s statements are not
rhetorical hyperbole and that the statements enjoy a
qualified privilege. However, we conclude that the circuit
court erred by ruling that Dr. Smith’s statements
[**534] that the patient “could have made it with better
resuscitation” and that Dr. Cashion “determined from the
beginning that he wasn’t going to make it and
purposefully didn’t resuscitate him” were non-actionable
expressions of opinion. We also conclude [***20] that
the circuit court erred by ruling that qualified privilege
can be lost or abused only upon a showing of personal
spite or ill will. We therefore will reverse those portions
of the circuit court’s judgment and remand for further
proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Concur by: POWELL (In Part)

Dissent by: McCLANAHAN; POWELL (In Part)

Dissent

286 Va. 327, *338; 749 S.E.2d 526, **533; 2013 Va. LEXIS 139, ***16

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Page 9 of 12

JUSTICE McCLANAHAN, dissenting.

I agree with Justice Powell that Dr. Cashion waived any
objection to challenge the non-euthanasia statements
for the reasons stated in [*341] her analysis of that
issue. Therefore, I also would not reach the merits of Dr.
Cashion’s argument that the circuit court erred in
determining that the non-euthanasia statements were
expressions of opinion. As to the euthanasia
statements, however, I would hold they are protected by
the First Amendment to the United States Constitution
and Article I, Section 12 of the Constitution of Virginia as
rhetorical hyperbole and, therefore, not actionable.

Both the United States Supreme Court and this Court
have recognized that putatively defamatory statements
that are not literal assertions of “actual fact” but, instead,
“rhetorical hyperbole,” are constitutionally protected
[***21] free speech. See, e.g., Milkovich v. Lorain
Journal Co., 497 U.S. 1, 16-17, 110 S. Ct. 2695, 111 L.
Ed. 2d 1 (1990); Old Dominion Branch No. 496 v.
Austin, 418 U.S. 264, 284-86, 94 S. Ct. 2770, 41 L. Ed.
2d 745 (1974); Greenbelt Coop. Publ’g Ass’n v. Bresler,
398 U.S. 6, 13-14, 90 S. Ct. 1537, 26 L. Ed. 2d 6
(1970); Yeagle v. Collegiate Times, 255 Va. 293, 295-
96, 497 S.E.2d 136, 137-38 (1998); Crawford v. United
Steel Workers, AFL-CIO, 230 Va. 217, 234-35, 335
S.E.2d 828, 838-39 (1985). “The First Amendment’s
shielding of figurative language reflects the reality that
exaggeration and non-literal commentary have become
an integral part of social discourse.” Levinsky’s, Inc. v.
Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997).
Such protected speech specifically includes words that
are “sure to be understood as merely a label for the
labeler’s underlying assertions,” Dilworth v. Dudley, 75
F.3d 307, 309 (7th Cir. 1996), and exaggerated rhetoric
intended to convey outrage or condemnation.
Greenbelt, 398 U.S. at 14; CACI Premier Technology,
Inc. v. Rhodes, 536 F.3d 280, 301-03 (4th Cir. 2008);
Horsley v. Rivera, 292 F.3d 695, 701-02 (11th Cir.
2002). In other words, rhetorical hyperbole is not
actionable because the speaker is not asserting a
statement of fact, but is using exaggerated or
[***22] figurative language to drive home an underlying
factual assertion or point of view.

In assessing Dr. Cashion’s claim of defamation based
on the euthanasia statements, we must consider those
statements in the context of the entirety of the
statements made by Dr. Smith and the circumstances in
which the statements were made. Yeagle, 255 Va. at

297-98, 497 S.E.2d at 138; Lewis v. Kei, 281 Va. 715,
725-26, 708 S.E.2d 884, 891-92 (2011). Dr. Cashion
alleges in his amended complaint that, outside of the
operating room, Dr. Smith accused him of euthanizing
the patient when Nurse Zwart and Dr. Crawford, Chief of
Anesthesia at the Carilion Clinic, were both present,
and, again, during a conversation between Dr. Cashion,
Dr. Crawford, and Dr. [*342] Smith shortly thereafter.
Dr. Cashion’s allegations in his amended complaint and
his responses to requests for admission make clear that
Dr. Smith made the euthanasia statements immediately
following a high-stress trauma situation, in the context of
criticizing Dr. Cashion’s efforts to resuscitate a “critically
injured patient” whose “demise seemed imminent.”

Furthermore, we must accept Dr. Cashion’s theory of
defamation that Dr. Smith accused him of “the
[***23] commission of a criminal offense involving moral
turpitude, specifically, deliberately causing the death of
another [**535] person, for which Dr. Cashion may be
indicted and punished.”1 See Horsley, 292 F.3d at 701
(having alleged that defendant defamed plaintiff by
stating he is chargeable with a felony, plaintiff is bound
by that construction of the statements). Dr. Cashion
argued in the circuit court that the accusation of
euthanasia was “a straightforward allegation of the
purposeful killing” through the use of a “calculated
medical term to proclaim that another doctor had
executed [the patient].” Similarly, in this Court, he
argues that Dr. Smith accused him of “purposefully
kill[ing] the patient like he was an animal.”2

Examining the context surrounding the euthanasia
statements and considering the entirety of the
statements made by Dr. Smith in light of Dr. Cashion’s
theory of defamation, I would conclude that no
reasonable hearer would have understood Dr. Smith’s
euthanasia statements as literally accusing Dr. Cashion
of a crime for which he could be indicted and punished,

1 Virginia does not permit “mercy killing or euthanasia” or “any
affirmative or deliberate act or omission to end life other than
to permit the natural process of dying.” See Code § 54.1-
2990(D).

2 Dr. Cashion’s theory of defamation is advanced repeatedly
throughout his brief wherein he argues that in making the
euthanasia statements, Dr. Smith “accused Dr. Cashion of
killing the patient,” made a “statement of medical fact that Dr.
Cashion had killed a patient,” and “suggested [***24] that Dr.
Cashion had intentionally dispatched the patient as if he were
an animal.”

286 Va. 327, *340; 749 S.E.2d 526, **534; 2013 Va. LEXIS 139, ***20

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Page 10 of 12

i.e., criminal homicide.3 Dr. Smith allegedly accused Dr.
Cashion of “euthaniz[ing his] patient” while criticizing Dr.
Cashion for what he viewed as poor resuscitation efforts
[*343] on a critically injured patient whose death was
imminent.4 The statements were made in the presence
of Dr. Crawford, who was familiar with the medical
condition of the patient and the nature of Dr. Smith’s
criticisms of Dr. Cashion, and a nurse involved in the
resuscitation of the patient. All of the statements related
to the treatment Dr. Cashion rendered to an already
dying patient in the presence of numerous medical
providers.5 Thus, the reasonable hearer of the
euthanasia statements would have understood Dr.
Smith’s statements as an exaggerated expression of
outrage at [***25] Dr. Cashion’s resuscitation efforts,
not a literal accusation of fact – that Dr. Cashion
committed a criminal homicide.6 See Greenbelt, 398

3 In concluding the euthanasia statements could be construed
as stating facts about Dr. Cashion, the circuit court reasoned
that “it is believable that a surgeon’s euthanasia comment
about an anesthesiologist, directly after a patient has died on
the operating table, meant that the anesthesiologist committed
malpractice, and euthanized a hopeless patient.” Likewise,
[***26] the majority states that a listener could believe Dr.
Cashion “caus[ed] or contribut[ed] to the patient’s death by
providing deficient care.” This reasoning wholly ignores Dr.
Cashion’s theory of defamation regarding the euthanasia
statements, which is that Dr. Smith accused him of a crime,
not just malpractice or deficient care. See Horsley, 292 F.3d at
701.

4 In fact, because as Dr. Cashion asserts, the patient’s death
from his injuries was imminent and the prohibition on
euthanasia in Virginia does not extend to permitting the
natural process of dying, see Code § 54.1-2990(D), the actual
circumstances in which the statements were made would not
permit a reasonable inference that Dr. Cashion criminally
euthanized the patient or that Dr. Smith was stating, as a
literal fact, that Dr. Cashion had criminally euthanized the
patient.

5 Although Dr. Cashion acknowledges that if taken literally, Dr.
Smith would have been accusing him of the intentional killing
of a patient in the presence of other health care providers, he
posits that because the euthanasia could have been
performed “without attracting attention,” the statement could
reasonably be believed.

6 Dr. Cashion argues that because he [***27] was an
anesthesiologist and, therefore, capable of euthanasia, the
statement could be taken to be literally true. While out of
context, accusing an anesthesiologist of euthanizing a patient
because an anesthesiologist is capable of such an act could

U.S. at 14 (even the most careless reader would have
perceived the word “blackmail” as a vigorous epithet
used by those who considered a real estate developer’s
negotiating position unreasonable and not as a charge
of the commission of a criminal offense); Horsley, 292
F.3d at 702-03 (reasonable viewer would have
understood [**536] defendant’s use of phrase
“accomplice to murder” as an expression of outrage,
and not an accusation of the commission of a crime).
Accordingly, the use of the word “euthanize” in this
context was, in my view, a figurative label for Dr. Smith’s
underlying criticisms, and would have been understood
as such by the medical personnel who heard the
euthanasia statements.7

[*344] Further supporting the conclusion that Dr. Smith
used the term “euthanasia” figuratively is Dr. Cashion’s
own allegation in his amended complaint that Dr. Smith
admitted he never believed [***28] Dr. Cashion actually
committed euthanasia. Thus, the circuit court could not
properly conclude, as it did, that “[i]f that is what Smith
believed to have occurred, then a euthanasia comment
would not be hyperbole.”

For these reasons, I would hold the circuit court erred in
its determination that the euthanasia statements were
not rhetorical hyperbole. However, because I believe the
circuit court reached the right result, I would affirm the
circuit court’s grant of summary judgment. See Deerfield
v. City of Hampton, 283 Va. 759, 767, 724 S.E.2d 724,
728 (2012) (applying the right result for the wrong
reason doctrine).

JUSTICE POWELL, with whom JUSTICE GOODWYN
joins, concurring in part and dissenting in part, and with
whom JUSTICE McCLANAHAN joins in part.

I concur in the Court’s judgment in all respects with
regard to the euthanasia statements. However, I

be taken as a literal statement of fact, we must examine the
entirety of the statements in the context in which the
statements were allegedly made, consider the identity of those
who allegedly heard them, and determine what they
reasonably would have believed under those circumstances.
Yeagle, 255 Va. at 297-98, 497 S.E.2d at 138-39; Lewis, 281
Va. at 725-26, 708 S.E.2d at 891-92.

7 Dr. Smith’s use of non-literal language to make his point was
not limited to his euthanasia statements since, as Dr. Cashion
alleges in his amended complaint, Dr. Smith used a basketball
analogy when he told Dr. Cashion in the presence of other
medical personnel: “We [the trauma surgeons] were playing
full court press and you were playing four corners” with the
patient’s life.

286 Va. 327, *342; 749 S.E.2d 526, **535; 2013 Va. LEXIS 139, ***24

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Page 11 of 12

believe that we need not reach the merits of Dr.
Cashion’s argument that the circuit court erred in
determining that the non-euthanasia statements were
protected statements of opinion instead of actionable
statements of fact, as Dr. Cashion expressly waived any
such argument regarding the non-euthanasia
statements. Therefore, I respectfully [***29] dissent
from Part II.A. of the majority opinion.

Although we have previously considered the
endorsement, “WE ASK FOR THIS” as indicating that a
party has “asked for and consented to an order,” Lamar
Corp. v. City of Richmond, 241 Va. 346, 349, 352, 402
S.E.2d 31, 32, 34, 7 Va. Law Rep. 1776 (1991), I
recognize that we have yet to consider such an
endorsement in the context of Code § 8.01-384(A).

Code § 8.01-384(A) provides in relevant part as follows:

No party shall be deemed to have agreed to, or
acquiesced in, any written order of a trial court so
as to forfeit his right to [*345] contest such order
on appeal except by express written agreement in
his endorsement of the order.

(Emphasis added.)

In the present case, it is undisputed that counsel for Dr.
Cashion endorsed the Demurrer Order with the
signature-block notation: “WE ASK FOR THIS.” The
only logical interpretation of such an endorsement is
that it is a request for the circuit court to enter the order
as drafted, and therefore it constitutes an “express
written agreement” with the terms of the order pursuant
to Code § 8.01-384(A). Dr. Cashion, having agreed with
“the action taken by the trial court [entering the order],
should not [now] be allowed to assume [***30] an
inconsistent position.” Clark v. Commonwealth, 220 Va.
201, 214, 257 S.E.2d 784, 792 (1979).

Code § 8.01-384(A) goes on to state:

Arguments made at trial via written pleading,
memorandum, recital of objections in a final order,
oral argument reduced to transcript, or agreed
written statements of facts shall, unless expressly
withdrawn or waived, be deemed preserved therein
for assertion on appeal.

(Emphasis added.)

A review of the orders in the case also indicates that
counsel for Dr. Cashion knew the difference between
objecting to a ruling as opposed to expressly agreeing
with one. When endorsing an order with which he
agreed, i.e., the order granting leave to amend his

complaint, the order granting the motion to correct
misnomer and the order at [**537] issue here, counsel
for Dr. Cashion used the language: “WE ASK FOR
THIS.”1 However, when objecting to an order, such as
the final order granting summary judgment, Dr.
Cashion’s counsel used the endorsement language
“Seen and objected to,” despite the fact the circuit court
ruled partly in Dr. Cashion’s favor by denying the motion
for summary judgment on the issues relating to treating
the statements made in the hallway as non-actionable
rhetorical [***31] hyperbole. Clearly, when Dr. Cashion
intended to object to a ruling of the circuit court, he did
so. Here, he did not.

[*346] Contrary to the majority opinion, there is nothing
in the record indicating that the Demurrer Order “reflects
only [Dr. Cashion’s] request that the court enter an order
memorializing its ruling.” Indeed, it is clear that the
circuit court ordered counsel for Dr. Cashion to “prepare
an appropriate order and, after endorsements, send it to
the Court for entry.” (JA 67). Levisa Coal Co. v.
Consolidation Coal Co., 276 Va. 44, 56 n.4, 662 S.E.2d
44, 50 n.4 (2008), the case upon which the majority
relies for this notion, is inapposite to the present case.
The actual issue in Levisa Coal involved the right of a
party to request that a court memorialize its ruling in an
order. As previously noted, there is nothing in the record
that even remotely indicates that Dr. Cashion requested
the circuit court memorialize its ruling.
[***32] Furthermore, in Levisa Coal, the appellant
specifically noted its objections and the trial court
expressly reserved those objections by reference in its
order. Id. In the present case, however, the Demurrer
Order was drafted by counsel for Dr. Cashion, contained
no reservation of objections and, in fact, affirmatively
asked the trial court for dismissal of the claims based on
the non-euthanasia statements.

In Johnson v. Hart, 279 Va. 617, 624, 692 S.E.2d 239,
243 (2010), we held that an appellee’s endorsement of
an order granting summary judgment in his favor with
“[s]een and consented to” did not constitute an express
waiver under Code § 8.01-384 of the arguments he
previously presented to the circuit court. Considering the
context of the endorsement in that case – that it was
made by the prevailing party on a final order that
dismissed the case with prejudice in his favor – we

1 Tellingly, Dr. Cashion signed this order “WE ASK FOR THIS”
despite the fact that the demurrer was filed by Dr. Smith and
Carilion. Additionally, although Dr. Smith and Carilion
prevailed in part, they each noted their objections to the circuit
court’s ruling.

286 Va. 327, *344; 749 S.E.2d 526, **536; 2013 Va. LEXIS 139, ***28

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Page 12 of 12

concluded that “[s]een and consented to” only
“indicate[d] that [appellee] consented to the trial court’s
order granting his motion for summary judgment,” and
did not convey his acquiescence with every ruling the
circuit court made in granting the motion. Id. at 624, 692
S.E.2d at 243.

Johnson differs from the [***33] present case in that
there is a distinction between a recognition that the
circuit court has ruled for a party and that party
“consents” to the entry of a proper final order and the
relief contained therein, and a party’s affirmative request
for the entry of an order and the relief contained therein.
The latter clearly indicates that the party has yielded its
position. Moreover, the Demurrer Order was not a final
order disposing of the case in Dr. Cashion’s favor;
rather, the circuit court ruled both for and against Dr.
Cashion, and the case proceeded.

[*347] I feel compelled to point out that the majority
has made it virtually impossible for a party to “forfeit his
right to contest [an] order on appeal” under Code §
8.01-384(A). According to the majority, an express,
written statement asking for a specific order and the
relief contained therein with no objections noted is
insufficient to waive an objection. Thus, under the
majority’s rubric, for Dr. Cashion to waive his objections,
he would be required to endorse the order with the
statement: “I am affirmatively waiving my objection to
the demurrer on the non-euthanasia statements.”

In considering what constitutes waiver under Code §
8.01-384(A), [***34] we have recognized that:

Once a litigant informs the circuit court of his or her
legal argument, in order for a waiver to occur within
the meaning of Code § 8.01-384(A), the record
must affirmatively show that the party who has
asserted an objection has abandoned the [**538]
objection or has demonstrated by his conduct the
intent to abandon that objection.

Helms v. Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129
(2009) (internal quotation marks and alteration omitted)
(emphasis added).

In my opinion, the record clearly reveals that, in addition
to expressly abandoning his objection in writing, Dr.
Cashion “demonstrated by his conduct the intent to
abandon [the] objection.” Helms, 277 Va. at 6, 671
S.E.2d at 129 (internal quotation marks omitted). The
focus of his pleadings and argument was on the
statements relating to “euthanasia” and not the non-
euthanasia statements. For example, in the Amended

Complaint, Dr. Cashion alleged “[a] simple apology from
Dr. Smith acknowledging that Dr. Cashion did not
‘euthanize’ the patient would have sufficed to end the
matter at this early stage.” Notably, he makes no
mention of an apology for the non-euthanasia
comments. Further, during the course of the hearing,
[***35] counsel for Dr. Cashion mentioned the word
“euthanasia” or some form of it, (e.g., “purposely
killed”) at least six times. By contrast, he referred to the
non-euthanasia statements only once, and even then,
only as factual support for the euthanasia statements.

Further, the majority fails to consider the unintended
consequences of its holding. In my opinion, the majority
fails to give appropriate consideration to Dr. Cashion’s
actions. If the conduct of a party is no longer considered
in determining affirmative waiver, then [*348] I believe
that the majority has opened the floodgates to invited
error. Under the majority’s approach, as long as a party
does not endorse an order in a manner that specifically
waives the objection, that party’s objection to that order
would be preserved regardless of that party’s
subsequent actions. But see Saunders v.
Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638
(1970)) (recognizing that a party that unsuccessfully
objects to an action of the trial court waives that
objection when he subsequently acts in a manner that
runs counter to his objection).

By endorsing the order with “WE ASK FOR THIS” and
failing to note any objections, Dr. Cashion affirmatively
[***36] requested, and therefore yielded to, the terms of
the entire Demurrer Order. Thus, he abandoned any
objections he may have had to the order. Accordingly, I
would hold that Dr. Cashion has waived his arguments
on appeal regarding the actionability of the non-
euthanasia statements.

End of Document

286 Va. 327, *346; 749 S.E.2d 526, **537; 2013 Va. LEXIS 139, ***32

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