PRESENT:   All the Justices

BRADLEY J. CASHION
                                           OPINION BY
v.   Record No. 121797               JUSTICE WILLIAM C. MIMS
                                        October 31, 2013
ROBERT S. SMITH, ET AL.


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                      Jonathan M. Apgar, Judge

      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.

      Following the patient’s death, 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

             “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 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, that Dr. Smith’s statements

were non-actionable expressions of opinion or rhetorical

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

                                     2
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 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 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.


                                3
Accordingly, it awarded Dr. Smith and Carilion summary judgment

and dismissed the amended complaint.     We awarded Dr. Cashion

this appeal.

                            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

          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. 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.

     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


                                   4
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 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 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 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:

           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 (1991); Fox v. Deese, 234 Va. 412, 425,


                                5
            362 S.E.2d 699, 707 (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 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.       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.



                                  6
     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 court’s award of 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 (1991). 2   However, our


     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.

                                 7
analysis did not address 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 his endorsement

of the order.”   The General Assembly amended Code § 8.01-384(A)




     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 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 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 to
acquire their interests. Id.



                                8
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.

        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).




                                  9
       “When 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)).

       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 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 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.   The statement asserts that the patient was capable of

surviving, but for the quality of Dr. Cashion’s treatment.


                                 10
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.   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).    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,


                                 11
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 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.

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 is

unwarranted, and hereby overrule the inclusion of that

language.

     Indeed, historically, this Court has repeatedly recognized

that 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


                                 12
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.

     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 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, 854 (1985), 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


                                 13
number of our 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, Raytheon 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 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




                                14
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

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.

     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 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


                                  15
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 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


                                 16
that Dr. Smith’s statements 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 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.


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 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.



                                  17
     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 free speech.     See,

e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17

(1990); Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974);

Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13-14

(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




                                  18
fact, but is using exaggerated or 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. 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 commission of a

criminal offense involving moral turpitude, specifically,

deliberately causing the death of another person, for which Dr.




                                19
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 that Dr.
Cashion had intentionally dispatched the patient as if he were
an animal.”



                                20
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 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




     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, 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.



                                 21
providers. 5   Thus, the reasonable hearer of the euthanasia

statements would have understood Dr. Smith’s statements as an

exaggerated expression of outrage at Dr. Cashion’s

resuscitation efforts, not a literal accusation of fact – that

Dr. Cashion committed a criminal homicide. 6    See Greenbelt, 398

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 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


     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 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 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.



                                 22
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

     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 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).




     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.

                                23
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 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 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 (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
          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 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 issue here, counsel




                                25
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

hyperbole.   Clearly, when Dr. Cashion intended to object to a

ruling of the circuit court, he did so.    Here, he did not.

     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

     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.

                                 26
record that even remotely indicates that Dr. Cashion requested

the circuit court memorialize its ruling.   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

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 present case in that there is a

distinction between a recognition that the circuit court has


                                 27
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.

     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), 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
          objection or has demonstrated by his


                                28
           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, 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



                                 29
to give appropriate consideration to Dr. Cashion’s actions.     If

the conduct of a party is no longer considered in determining

affirmative waiver, then 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 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.




                                 30
