Present: All the Justices 

J. WARREN TOMLIN, ET AL. 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 951427 April 19, 1996 

PATSYE D. McKENZIE, ET AL. 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

William H. Oast, Jr., Judge 

 In this appeal, we consider whether the trial court erred in 

sustaining a plea in bar asserting that a clinical social worker 

conducting court-referred family therapy was immune from 

liability for various claims of malpractice and defamation. 

 J. Warren Tomlin, individually and as next friend for his 

minor daughter, Alexandria A. Tomlin, and his wife, Carolyn D. 

Hope-Tomlin (collectively Tomlin) filed a three-count motion for 

judgment against Patsye D. McKenzie (McKenzie), a licensed 

clinical social worker, and Family Marital Guidance Clinic, now 

F.M.G.C., P.C., a professional corporation in which McKenzie is 

the principal participant and sole shareholder. The motion for 

judgment alleged that McKenzie provided family therapy to Mr. 

Tomlin, Alexandria and Darlene K. Giffin (Giffin), Mr. Tomlin's 

former wife and Alexandria's mother, pursuant to an order of 

referral by the Juvenile and Domestic Relations District Court of 

the City of Chesapeake arising out of divorce and custody 

proceedings. The motion for judgment further alleged that in the 

course of providing that therapy, McKenzie intentionally and 

maliciously committed various acts amounting to malpractice and 

defamation. The motion for judgment sought compensatory damages 

of $11,000,000 and punitive damages of $350,000. 
 The defendants filed a plea in bar seeking dismissal of the 

suit on the ground that McKenzie should be afforded immunity 

under common law and statutory theories. McKenzie asserted that 

common law sovereign immunity protects her from civil suits for 

actions performed in her capacity as a court-appointed officer, 

"similar to a Commonwealth's attorney or judge." McKenzie 

further asserted that pursuant to Code § 63.1-248.5 she is 

"absolutely immune for her participation in [the] judicial 

proceeding regarding Alexandria Tomlin." 

 No evidence was taken at the subsequent hearing on the plea. 

 The trial court dismissed the motion for judgment "upon hearing 

argument of counsel and reviewing the papers filed herein, and 

for good cause shown." We awarded Tomlin an appeal and, for the 

following reasons, we will reverse the judgment. 

 Our resolution of the issue before us is guided by well 

established principles. The defensive plea in bar shortens the 

litigation by reducing it to a distinct issue of fact which, if 

proven, creates a bar to the plaintiff's right of recovery. The 

moving party carries the burden of proof on that issue of fact. 

See Campbell v. Johnson, 203 Va. 43, 47, 122 S.E.2d 907, 909 

(1961). Where no evidence is taken in support of the plea, the 

trial court, and the appellate court upon review, must rely 

solely upon the pleadings in resolving the issue presented. See

Weichert Company of Va., Inc. v. First Commercial Bank, 246 Va. 

108, 109, 431 S.E.2d 308, 309 (1993). When considering the 

pleadings, "the facts stated in the plaintiffs' motion for 

judgment [are] deemed true." Glascock v. Laserna, 247 Va. 108, 
109, 439 S.E.2d 380, 380 (1994). 

 Applying these principles, we initially address the immunity 

granted by Code § 63.1-248.5. That Code section provides: 

 Any person making a report pursuant to Code 

§ 63.1-248.3, a complaint pursuant to § 63.1-248.4, or 

who takes a child into custody pursuant to § 63.1-

248.9, or who participates in a judicial proceeding 

resulting therefrom shall be immune from any civil or 

criminal liability in connection therewith, unless it 

is proven that such person acted in bad faith or with 

malicious intention. [Emphasis added.] 

 Although the plea in bar specifically asserts that under 

this section "McKenzie is absolutely immune for her participation 

in [the] judicial proceeding regarding Alexandria," the plain 

language of the section refutes that assertion of absolute 

immunity. In any event, on appeal McKenzie now asserts that this 

section is "irrelevant to the issue now before the Court" because 

her appointment was not controlled by the statutes referenced in 

this section. We need not resolve that contention. Even if we 

were to accept McKenzie's belated assertion that Code 

§ 63.1-248.5 is not applicable to her circumstances, we would 

nonetheless find that the allegations in the motion for judgment, 

accepted as true for purposes of resolving the plea in bar, would 

defeat McKenzie's other claims of immunity as well. 

 The issue of fact, as expressed in her appellate brief, upon 

which McKenzie apparently relies as a bar to the suit is that 

"[a]ll of the acts of which Tomlin complains were performed by 

McKenzie in her capacity as an agent of the Court." This 

reliance is misplaced for two reasons. First, where sovereign 

immunity is claimed by an agent of the state, rather than by the 
state as an entity, it will not be extended to acts which 

constitute a wanton and intentional deviation from the duties the 

agent has been assigned to undertake. See James v. Jane, 221 Va. 

43, 53, 267 S.E.2d 108, 113 (1980); see also Elder v. Holland, 

208 Va. 15, 19-20, 155 S.E.2d 369, 372-73 (1967). Accordingly, 

accepting as true the allegations in the first two counts of the 

motion for judgment that McKenzie conspired with Giffin to 

violate court orders and to interfere with Mr. Tomlin's 

visitation with his child, and engaged in other intentional and 

wanton misconduct, we think the trial court erred in applying 

sovereign immunity on this state of the record. 

 Second, and more importantly, the motion for judgment 

alleges acts of professional malpractice and defamation which, if 

accepted as true for purposes of the plea in bar and if 

ultimately proven at trial, are entirely inconsistent with the 

proper conduct of a family therapy practitioner. Such conduct 

would be no less unacceptable, and perhaps even more egregious, 

if one were subjected to it under the compulsion of a 

court-ordered referral. Conduct outside the scope of the 

employment is not protected by sovereign immunity. See Messina 

v. Burden, 228 Va. 301, 311, 321 S.E.2d 657, 662 (1984). 

Similarly, conduct outside the scope of a court-ordered referral 

has no valid claim to sovereign immunity. 

 In short, because McKenzie argued her plea in bar without 

presenting evidence, the trial court was required to accept as 

true the allegations of the motion for judgment. Those 

allegations concerned malicious, intentional tortious acts 
outside the scope of McKenzie's court-appointed role and, 

therefore, the trial court should have denied the plea in bar. 

Accordingly, we will reverse the trial court's dismissal order 

and remand for further proceedings. 

Reversed and remanded.