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March 24, 2026 Get Citation Alerts Download PDF Add Note

Sean Lohr v. Board of Visitors of Virginia Polytechnic Institute and State University

Court of Appeals of Virginia

• Citations: None known
• Docket Number: 0389252
• Precedential Status: Non-Precedential

• Disposition: Judgment affirmed as trial court did not err sustaining plea in bar and dismissing claims with prejudice; no error determining pleadings not adequate to inform if the suit was against individual members of BOV and finding retaliation claim not adequately plead; claims of error receiving exhibits and finding qualified immunity waived, Rules 5A:18, 5A:20

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (51.3K)

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Disposition

Judgment affirmed as trial court did not err sustaining plea in bar and dismissing claims with prejudice; no error determining pleadings not adequate to inform if the suit was against individual members of BOV and finding retaliation claim not adequately plead; claims of error receiving exhibits and finding qualified immunity waived, Rules 5A:18, 5A:20

Combined Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Malveaux and Duffan
UNPUBLISHED

Argued at Richmond, Virginia

SEAN LOHR
MEMORANDUM OPINION* BY
v. Record No. 0389-25-2 JUDGE MARY BENNETT MALVEAUX
MARCH 24, 2026
BOARD OF VISITORS OF VIRGINIA
POLYTECHNIC INSTITUTE AND STATE
UNIVERSITY, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge

Andrew T. Bodoh (Thomas H. Roberts & Associates, P.C., on
briefs), for appellant.

M. Hudson McClanahan, Associate University Legal Counsel and
Special Assistant Attorney General (Kay Kurtz Heidbreder,
University Legal Counsel and Special Assistant Attorney General, on
brief), for appellees.

Sean Lohr appeals from an order sustaining the plea in bar of the Board of Visitors of

Virginia Polytechnic Institute and State University (“BOV”) and Rachael Tully and dismissing

Lohr’s claims with prejudice. Lohr contends the circuit court erred in: ruling that his complaint

did not adequately identify members of the BOV as defendants in their official capacities;

receiving exhibits omitted from his complaint; ruling he did not adequately plead a First

Amendment retaliation claim against Tully; finding that Tully enjoyed qualified immunity from

his claim against her; and ruling that Tully was entitled to absolute immunity. For the reasons

that follow, we affirm the circuit court.

*
This opinion is not designated for publication. See Code § 17.1-413(A).
I. BACKGROUND

A. The “Shirtless Boys”

Lohr was a student at Virginia Polytechnic Institute and State University (“Virginia

Tech” or the “university”) during the 2021-22 school year. During that time, he regularly

participated in the activities of the “Shirtless Boys,” a group of male students who supported the

university’s women’s soccer team during their matches. The Shirtless Boys would cheer for the

Virginia Tech players and encourage other spectators to cheer for them.

Beginning in August 2021, Virginia Tech’s Senior Associate Athletics Director, Reyna

Gilbert-Lowry, repeatedly complained to Lohr about the Shirtless Boys’ conduct. She also told

Lohr she had received multiple complaints from parents regarding the Shirtless Boys’ behavior.

During a match in late August, Gilbert-Lowry confronted the Shirtless Boys and told them to

“stop what they were doing,” although she did not specify what particular conduct she found

objectionable. Following this incident, Lohr requested information from the university’s athletic

director and the team’s coach regarding any complaints lodged against the Shirtless Boys. He

received no such information in response.

During a match in September 2021, Virginia Tech fans suspected that a visiting player

was faking injuries to obtain penalties. The fans “expressed their dissatisfaction loudly,

including with profanities.” Although Lohr denies the Shirtless Boys used any profanities, Lohr

was approached by Gilbert-Lowry and told to “tone it down.” When Lohr asked Gilbert-Lowry

why she “did not respect the Shirtless Boys,” she summoned university security. Lohr then

began running back and forth across the landing at the front of the bleachers to “rally the crowd”

in support of the team. Security arrived and told the Shirtless Boys to leave. As the Shirtless

Boys departed, Lohr told the crowd to “email Gilbert-Lowry’s boss” and “expressed his opinion

to her personally that she was a glorified PE teacher.”

-2-
Lohr complained about Gilbert-Lowry’s conduct to the Office of the Dean of Students.

The following day, Gilbert-Lowry filed a student conduct complaint against Lohr alleging

disorderly or disruptive conduct, failure to comply, and abusive conduct.

Rachael Tully, employed at that time as Virginia Tech’s Assistant Director for Student

Conduct, conducted a hearing on the complaint in October 2021. Soon after, she issued a

“determination letter.” In that letter, Tully found that Lohr was not responsible for failure to

comply or abusive conduct during the September 2021 episode. But based on his “running up

and down the flat landing of the bleachers” and “yell[ing] into the crowd” while being escorted

out of the stadium, Tully found Lohr responsible for disorderly or disruptive conduct in violation

of the university’s Student Code of Conduct. Due to his misconduct, Lohr was suspended from

Virginia Tech, although his suspension was deferred until graduation so long as he did not

violate any university policies. Lohr’s privileges to attend university athletic events were also

curtailed, with the curtailment deferred unless he engaged in “behaviors similar to the one

addressed during th[e] incident.” Additionally, Lohr was placed under a no-contact order with

respect to Gilbert-Lowry and instructed to write a “letter of acknowledgment to the community,

specifically attendees of sporting events, and its members impacted by [his] actions.”

B. Lohr’s Complaint

Pursuant to 42 U.S.C. § 1983, Lohr filed a two-count complaint in September 2023. Lohr

styled his complaint as follows:

SEAN LOHR,
Plaintiff,

v.

BOARD OF VISITORS OF VIRGINIA
POLYTECHNIC INSTITUTE AND STATE UNIVERSITY,
Currently:
Edward Baine,
David Calhoun,
-3-
Carrie Chenery,
Sandy Davis,
Nancy Dye,
Greta Harris,
Brad Hobbs,
William Holtzman,
Donald Horsley,
Anna James,
Letitia Long,
Chris Petersen,
John Rocovich, and
Jeff Veatch,
Each in his or her official capacity,

Serve: Kay Heidbreder, University Legal Counsel
236 Burruss Hall (0121)
Blacksburg, VA 24061

and

RACHAEL TULLY,
In her individual capacity,

Serve at: [redacted]1

Defendants.

In the first count of his complaint, Lohr sought declaratory and injunctive relief “against

the board of visitors” for alleged violations of his rights under the First Amendment of the U.S.

Constitution. Specifically, he contended that the disciplinary policy under which he was

sanctioned was unconstitutionally vague and overbroad and that its application against him was

“unconstitutionally applied to protected, expressive activity.” As relief, Lohr asked that the

circuit court declare the finding that he had violated the policy “unconstitutional . . . and enter an

injunction compelling the Board of Visitors to set aside the disciplinary action against [him], and

expunge all associated records” from his academic and student conduct files. He repeated this

1
We redact Tully’s address, which appears to be her personal residence, to protect her
privacy.
-4-
request for injunctive relief “ordering the Board of Visitors” to expunge his records in the prayer

for relief at the conclusion of his complaint.

In Lohr’s second count, he requested compensatory and punitive damages from Tully.

He specifically alleged that in addition to the “First Amendment [violations] by the enforcement

of the unconstitutional policy, or an unconstitutional application of the policy” against him,

Tully’s “decision to compel [him] to write a letter of acknowledgment” violated his First

Amendment rights by seeking “to compel affirmation of a belief and an attitude of mind

concerning the inappropriateness of his conduct.”

In his factual recitation, Lohr referenced and included excerpts from three exhibits.

Exhibit A was a copy of Tully’s determination letter; Exhibit B was a copy of Tully’s letter

placing Lohr under a no-contact order; and Exhibit C was a copy of the university’s code of

conduct defining disorderly or disruptive conduct. But although Lohr referenced the contents of

each exhibit in his complaint and stated that the exhibits were “attached” to his pleading, he did

not include them when he filed his complaint.

Tully was served with a copy of the complaint at her listed address. The return of service

for the university indicated that a single copy of the complaint was served on an attorney

authorized to accept service by Heidbreder, the university’s legal counsel.

Entering a special appearance, counsel for the BOV and Tully filed a plea in bar asserting

various immunity defenses. Lohr filed a response in which, in addition to his previous claims

against Tully of coerced speech and enforcement of an unconstitutional student conduct policy

applied to him in an unconstitutional manner, he also asserted a First Amendment retaliation

claim. And in a reply to Lohr’s response to the plea in bar, defense counsel asserted that Lohr

had failed to serve any of the members of the BOV, and thus “Virginia Tech and Rachael Tully

-5-
[are] the only two proper parties to this action.” Counsel appended copies of Lohr’s service

returns to their response, as well as copies of Lohr’s three exhibits.

C. The Hearing

At a hearing on the plea in bar, Lohr argued that “with respect to [the exhibits] that we

referenced in the complaint, we did intend to file them” but “inadvertently left them off.” He

asserted that, when opposing counsel noted this omission, Lohr contacted them and “said we’d

consider to file a motion to correct the deficiency.” But once the defendants filed their plea in

bar, Lohr stated, he was “concern[ed] . . . that by submitt[ing] additional documents you convert

the standard of review for the plea in bar from one of a demurrer styled review into one of an

evidentiary style review.” Lohr therefore did not file a motion to submit the exhibits, instead

“standing on the complaint as we had filed it so that there was not any confusion about the

appropriate standard of review.”

Defense counsel argued that because the exhibits were referenced in Lohr’s complaint, he

had “made them a part of his complaint.” And since Lohr had “as much [as] told the Court that

he does not plan to submit them,” defense counsel sought leave “to submit those documents, A,

B and C . . . . I think [Lohr’s] stuck with them. They are part of the complaint by law.” When

the circuit court asked Lohr why defense counsel should not be permitted to submit the three

exhibits, Lohr replied that he had “no concern with the Court ultimately seeing it that way. What

I do have a concern with is the Court understanding what is the appropriate standard of review

for this plea in bar.” If the exhibits constituted “new evidence being submitted under a plea in

bar,” Lohr contended, that would “convert[] the standard of review into a evidentiary analysis.”

Accordingly, Lohr’s “concern [was] not with the Court seeing the documents,” but with “clarity

in concerning the appropriate standard of review.” The circuit court granted defense counsel’s

motion and received the documents.

-6-
On the issue of the parties to Lohr’s suit, defense counsel entered a general appearance as

to Tully but maintained he was making only a special appearance on behalf of the BOV members

as individuals. Counsel noted that service of Lohr’s complaint had only been on the BOV as an

entity, and although the board members were “listed as defendants” in the caption to the

complaint, “they’ve never been served.” And because “the board is the university” and “[t]he

board is not a person,” Lohr’s action pursuant to 42 U.S.C. § 1983 “cannot proceed.”

In response, Lohr argued that his complaint made “clear and unambiguous” that he was

suing the BOV members “each in his or her [official] capacity” because “[t]hat’s how it’s listed

in the -- listed in the caption.” He contended that the circuit court clerk’s office, not himself, had

“prepare[d] the service,” based on his specification of whom to serve in the caption, and that he

had indicated university counsel was to be served because he “thought that this was the

professional way to handle the situation.” Lohr stated he would be “glad to file an amended

complaint,” because “Virginia Tech is not the party we are suing.” But Lohr never sought leave

to file an amended complaint.

After further argument addressing the immunity defenses raised by the BOV and Tully,

the circuit court took the issues of immunity and the correct parties to the suit under advisement.

D. The Circuit Court’s Ruling and Lohr’s Motion to Reconsider

The circuit court issued an order granting the plea in bar as to both the BOV and Tully.2

It held that the BOV was entitled to absolute and sovereign immunity and that Tully, as an agent

of the BOV, was entitled to absolute and qualified immunity. The court dismissed the claim

against the BOV with prejudice and the claim against Tully without prejudice. It also noted that

at a previous hearing on a motion to hold the case in abeyance, the parties represented that the

2
In its order, the circuit court erroneously stated that it was “sustain[ing] the Demurrer as
to both Defendants.”
-7-
issue of the correct parties to the suit “was to be resolved as [Lohr] intended to serve the

members” of the BOV.

Lohr filed a motion for reconsideration and to suspend the circuit court’s order. He

contended that the circuit court erred in its immunity rulings and dismissal of his claims against

Tully and the BOV. He also sought resolution of the issue of the correct parties to the suit. Lohr

asserted that “[s]ervice on the individual members [of the BOV] was achieved by acceptance of

service . . . the same date” that the circuit court’s order was entered. The circuit court issued an

order to stay.

In responding to Lohr’s motion for reconsideration, the BOV contended that “the

argument to bring members [of the BOV] into this action in their personal capacit[ies] is

misplaced,” because Lohr’s “complaint itself nowhere indicates that the members are before this

Court in any personal capacity.” Counsel for the defendants did acknowledge, however, at a

hearing on the motion to reconsider, that Lohr was “correct that service was perfected. We

agreed to perfect service about the same time the Court issued an opinion.”

E. The Circuit Court’s Final Order

In its final order, the circuit court first addressed whether the BOV was before the court

“as a collective entity or . . . by each individual in their capacity as a member of the Board.” The

circuit court concluded there was an “ambiguity of the style of the case,” given that: Lohr had

styled his suit as against “Board of Visitors,” followed by the caption “Currently” and a list of

individual names; the list of board member’s names was followed by the notation, “Each in his

or her official capacity”; and that there was “a single address for requested service,” i.e., the

university’s legal counsel. The circuit court contrasted this ambiguity with the “clarity of the

style of the case as against Defendant Tully whose name is listed directly followed by the

notation ‘In her individual capacity’ and her individual address for service.” The circuit court

-8-
further noted that the style of Lohr’s complaint was not the only source of ambiguity that “lends

itself to the interpretation that [Lohr] sued the Defendant Board of Visitors as a collective

entity.” Count one of Lohr’s complaint requested declaratory and injunctive relief “against the

Board of Visitors” and twice more referred to the BOV as a “collective entity” in its requests for

relief. The circuit court concluded that assuming Lohr intended to sue the individual BOV

members in their official capacities, his pleadings did not “meet his fundamental obligation to

unambiguously identify” them as the party against whom the claim was asserted. Accordingly,

“[t]he Court was not clearly and unambiguously informed by the Complaint that [Lohr] intended

to sue fourteen individuals in their official capacities.”

Further, the circuit court again found that the BOV enjoyed sovereign immunity from

Lohr’s suit, but departed from its previous order by holding that its sovereign immunity finding

rendered moot the issue of absolute immunity. Similarly, the circuit court found that Tully was

entitled to qualified immunity, and thus the issue of her absolute immunity was moot. And with

respect to Lohr’s First Amendment retaliation claim against Tully, the circuit court noted that it

was “first asserted . . . in [Lohr’s] Response to Defendants’ Plea in Bar,” and thus failed to “put

Defendant Tully on notice” of the claim. The circuit court lifted its stay, granted the plea in bar,

and dismissed Lohr’s claims with prejudice.

This appeal followed.

II. ANALYSIS

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.

VanMarter, 279 Va. 566, 577 (2010)). “The party asserting the plea in bar bears the burden of

proof.” Id. (quoting Hawthorne, 279 Va. at 577). “We apply a de novo standard of review when

‘[t]here are no disputed facts relevant to the plea in bar and it presents a pure question of law.’”

-9-
Smith v. Larrowe, 86 Va. App. 276, 285 (2025) (alteration in original) (quoting Smith v.

McLaughlin, 289 Va. 241, 251 (2015)).

Where, as here, “no evidence is taken in support of a plea in bar, the trial court, and the

appellate court upon review, consider solely the pleadings in resolving the issue presented. In

doing so, the facts stated in the plaintiff’s [complaint] are deemed true.” Id. (alteration in

original) (quoting Fines v. Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 312 (2022)). And

“[a]lthough we grant the plaintiff any reasonable inferences derived from the factual allegations

in the complaint, ‘we give them no weight to the extent that they are unreasonable.’” Id. at 286

(quoting Patterson v. City of Danville, 301 Va. 181, 197 (2022)). “The difference between the

two turns on whether ‘the inferences are strained, forced, or contrary to reason,’ and thus

properly disregarded as ‘arbitrary inferences.’” Coward v. Wellmont Health Sys., 295 Va. 351,

359 (2018) (first quoting County of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 200 (2002);

and then quoting Stephens v. White, 2 Va. (2 Wash.) 203, 210-11 (1796) (opinion of Roane, J.)).

“We also ‘do not accept the veracity of conclusions of law camouflaged as factual allegations or

inferences.’” Smith, 86 Va. App. at 286 (quoting Patterson, 301 Va. at 197).

A. Identification of the BOV as a Defendant

Lohr contends the circuit court erred in finding that “the Corporate Body of the Board of

Visitors,” and not each member of the BOV “in His or Her Official Capacity,” was the defendant

to the first count of his complaint. He argues that his complaint was “manifestly directed against

each member of the Board in his or her official capacity, whether or not it was also directed

against the Board.” Lohr further contends that any “imperfect service . . . was subsequently

remedied.”

“The party filing a civil action has the fundamental obligation ‘to express the nature of

the claim being asserted, and the identity of the party against whom it is asserted, in clear and

• 10 - unambiguous language so as to inform both the court and the opposing party of the nature of the

claim.’” Ray v. Ready, 296 Va. 553, 558 (2018) (quoting James v. Peyton, 277 Va. 443, 450

(2009)). “Whether a pleading has adequately identified the proper party to be sued is a question

of law, which we review de novo.” Clutteur v. Rosier, 79 Va. App. 55, 65 (2023) (quoting Ray,

296 Va. at 558).

Here, the circuit court did not err in determining that Lohr’s pleadings did not adequately

inform it that his suit was against the individual members of the BOV in their official capacities,

rather than against the BOV as a corporate body. As noted by the circuit court, Lohr captioned

his complaint in a manner that was ambiguous, but other evidence in the body of the complaint

indicated that he was suing the BOV as a corporate entity. Specifically, Lohr’s complaint

requested declaratory and injunctive relief “against the Board of Visitors,” and Lohr twice more

referred to the BOV as a “collective entity” when specifying the relief he sought: “an injunction

compelling the Board of Visitors” to set aside the disciplinary action against him and expunge

records of the action, and “injunctive relief ordering the Board of Visitors” to effectuate

expungement. Further, although unremarked by the circuit court itself, nowhere in the body of

Lohr’s compliant did he explicitly state that his suit was against the members of the BOV in their

official capacities; rather, apart from the ambiguous caption of the complaint, all the internal

textual evidence of Lohr’s complaint supports that his suit was against the BOV as a corporate

body. Accordingly, the circuit court did not err in finding that Lohr’s complaint did not “clearly

and unambiguously inform[]” it that Lohr “intended to sue fourteen individuals in their official

capacities” and that, instead, Lohr’s complaint was against the BOV as a corporate entity.3

3
We further note that although Lohr was free to seek leave to amend his complaint to
correct any ambiguity, and represented to the circuit court that he would be “glad to file an
amended complaint,” he never did.
Additionally, Lohr’s argument that he remedied any “imperfect service” is meritless,
because the circuit court did not hold that the putative defendants were not unambiguously
- 11 -
B. Receiving Lohr’s Exhibits

Lohr argues the circuit court erred in receiving the three exhibits that were referenced in,

but omitted from, his complaint “and thereafter construing those documents in Tully’s favor.”

Lohr has waived the argument that the circuit court erred in receiving his exhibits,

because he did not object to the court receiving the exhibits per se. Rather, his objection

concerned the uses to which the circuit court might put the exhibits. When the circuit court

asked Lohr why defense counsel should not be permitted to submit the exhibits Lohr said were

inadvertently omitted from his pleadings, he replied that he had “no concern with the Court

ultimately seeing it that way” but that he did “have a concern with . . . the Court understanding

what the appropriate standard of review [was] for this plea in bar.” Lohr further stated that his

concern was “not with the Court seeing the documents” but “with clarity in concerning the

appropriate standard of review.”

“Procedural-default principles require that the argument asserted on appeal be the same

as the contemporaneous argument at trial.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019);

see also Rule 5A:18 (requiring that a contemporaneous objection be “stated with reasonable

certainty” in order to preserve an objection for appellate review). “[T]he precise nature of the

objection must be clear because ‘[m]aking one specific argument on an issue does not preserve a

separate legal point on the same issue for [appellate] review.’” Mollenhauer v. Commonwealth,

73 Va. App. 318, 329-30 (2021) (alterations in original) (quoting Johnson v. Commonwealth, 58

informed of the correct parties to the suit; rather, it was the court itself that was not clearly and
unambiguously informed, based on Lohr’s pleadings. And although Lohr cites Ghameshlouy v.
Commonwealth, 279 Va. 379 (2010), for the proposition that eventual service on the individual
BOV members, and their “appear[ance] . . . waived any claim they were not defendants,” his
reliance on that case is unavailing. The Court in Ghameshlouy only addressed questions of
potential and active jurisdiction regarding a notice of appeal filed in this Court, not issues of
notice of the parties to a suit to the trial court. 279 Va. at 389-90. Ghameshlouy is thus
inapposite.
- 12 -
Va. App. 625, 637 (2011)). Stated differently, “[n]ot just any objection will do. It must be both

specific and timely — so that the trial judge would know the particular point being made in time

to do something about it.” Bethea, 297 Va. at 743. Accordingly, “[p]ursuant to the

contemporaneous objection requirement of Rule 5A:18, this Court will not consider an argument

on appeal that was not presented to the trial court.” Mollenhauer, 73 Va. App. at 329. Here,

because Lohr did not object to the circuit court receiving and “seeing” his exhibits, but only to

how those exhibits might be used by the circuit court, he has waived any objection to the

exhibits’ reception.4

Lohr has also procedurally defaulted his argument that after the circuit court received the

exhibits, it erred by “construing” the exhibits “in Tully’s favor.” This is so because Lohr merely

asserts that the circuit court thus construed the documents, stating, “[t]o the extent the Circuit

Court’s opinions then intimate Lohr was not disciplined substantially for his expressive conduct,

the judge acted as a finder of facts, construing the evidence it received.” Lohr neither proffers

specific examples of how the circuit court allegedly misconstrued the exhibits, nor any specific

arguments as to how the court’s alleged misconstrual erroneously favored Tully.

“Rule 5A:20(e) requires that the appellant’s opening brief contain ‘[t]he standard of

review and the argument (including principles of law and authorities) relating to each assignment

of error.’ As Virginia’s appellate courts have repeatedly held, ‘[u]nsupported assertions of error

“do not merit appellate consideration.”’” Church Mut. Ins. Co. v. Ephesus Richmond

Seventh-Day Adventist Church, 84 Va. App. 371, 380 (2025) (alterations in original) (first

quoting Rule 5A:20(e); and then quoting Bartley v. Commonwealth, 67 Va. App. 740, 744

4
We further note that Lohr’s references to the accompanying exhibits in his complaint
“of itself and without more, ma[de] such exhibit[s] a part of the pleading.” Rule 1:4(i); see also
Cal. Condo. Ass’n v. Peterson, 301 Va. 14, 22 (2022) (applying Rule 1:4(i) and holding that a
document attached as an exhibit to an amended complaint and “specifically referred to by the
allegations of the complaint” was “before the circuit court”).
- 13 -
(2017)). Put simply, it “is not the role of the courts, trial or appellate, to research or construct a

litigant’s case or arguments for him or her, and where a party fails to develop an argument in

support of his or her contention or merely constructs a skeletal argument, the issue is waived.”

Coward, 295 Va. at 367 (quoting Bartley, 67 Va. App. at 746). Here, because Lohr fails to

develop any specific arguments as to how the circuit court erroneously construed his exhibits in

Tully’s favor, he has waived this issue.

C. Inadequate Pleading of Retaliation Claim

Lohr contends the circuit court erred in ruling he did not adequately plead a First

Amendment retaliation claim against Tully. He notes that the circuit court acknowledged he

pled an “as-applied First Amendment challenge,” argues this challenge adequately described

“what is commonly called a First Amendment Retaliation Claim,” and asserts that to distinguish

between the two is to make “a distinction without a difference.”

“[E]very litigant is entitled to be told by his adversary in plain and explicit language what

is his ground of complaint or defense.” Lehmann v. WFV Holdings, LLC, 80 Va. App. 802, 812

(2024) (quoting Grayson v. Westwood Bldgs., L.P., 300 Va. 25, 69 (2021)); see also Allison v.

Brown, 293 Va. 617, 626 (2017) (referring to “the bedrock requirement that a defendant must be

notified in a complaint regarding what claim is being made against him”). Accordingly, “no

litigant may recover on a right not [pleaded],” and “‘[t]he basis of every right of recovery . . . is a

pleading’ setting forth the basis for granting the relief sought.” Catoctin Ridge Homeowners

Ass’n v. Biller, 84 Va. App. 306, 320 (2025) (alterations in original) (quoting Graham v. Cmty.

Mgmt. Corp., 294 Va. 222, 229 (2017)). “Thus, a court is not permitted to enter a decree or

judgment order based on facts not alleged or a right not pleaded and claimed.” Allison, 293 Va.

at 625 -26 (quoting Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 86 (2011)).

• 14 - Here, Lohr’s complaint did not plainly and explicitly state a First Amendment retaliation

claim against Tully—that claim was first articulated only in Lohr’s response to the defendants’

plea in bar. A brief, however, is not a pleading. See Rule 3:18(a) (defining pleadings as “[a]ll

motions in writing, including a motion for a bill of particulars and a motion to dismiss”). And

Lohr’s complaint not only failed to plead a retaliation claim in plain and explicit language, it also

failed to specifically allege any retaliatory facts. The complaint is devoid of any language

asserting that Tully “retaliated” or sought to “retaliate” or take “retaliatory” action against Lohr.

Because Lohr’s complaint failed to convey to Tully, in plain and explicit language, that First

Amendment retaliation was a ground for the complaint, the circuit court did not err as alleged by

Lohr.5 Lehmann, 80 Va. App. at 812 (quoting Grayson, 300 Va. at 69).

D. Qualified Immunity

Lohr argues the circuit court erred in finding that Tully was entitled to qualified

immunity for “punishing [him] for . . . First Amendment protected activity” and “compelling

[him] to write a letter of acknowledgement.”

“[G]overnment officials performing discretionary functions, generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Cromartie v. Billings,

298 Va. 284, 299-300 (2020) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)); see also Taylor v. Barkes, 575 U.S. 822, 825 (2015) (“Qualified immunity

shields government officials from civil damages liability unless the official violated a statutory

5
During oral argument, Lohr contended that references in his complaint to Constantine v.
Rectors & Visitors of George Mason University, 411 F.3d 474 (4th Cir. 2005), “the leading
Fourth Circuit opinion” on First Amendment retaliation claims, were sufficient to put Tully on
notice of his retaliation claim. But simply citing a retaliation case and depending on a
defendant’s inference therefrom is not providing the “plain and explicit language” required for a
“ground of complaint.” Lehmann, 80 Va. App. at 812 (quoting Grayson, 300 Va. at 69).
- 15 -
or constitutional right that was clearly established at the time of the challenged conduct.”

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012))). Determining if qualified immunity

applies requires

a two-part analysis: first, whether the evidence, “[t]aken in the
light most favorable to the party asserting the injury . . . shows the
[official’s] conduct violated a constitutional right,” and, second,
whether the right at issue, when the evidence is viewed in the light
most favorable to the plaintiff, was “clearly established” at the
time of the violation.

Cromartie, 298 Va. at 300 (first and second alterations in original) (first quoting Saucier v. Katz,

533 U.S. 194, 201 (2001); and then quoting Tolan v. Cotton, 572 U.S. 650, 655-56 (2014)

(applying analysis in context of motion to strike)). “To be clearly established, a right must be

sufficiently clear ‘that every “reasonable official would [have understood] that what he is doing

violates that right.”’” Reichle, 566 U.S. at 664 (alteration in original) (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011)). Determining whether a government official “is entitled to

immunity is a question of law this Court reviews de novo.” Cromartie, 298 Va. at 296.

Lohr first argues that Tully erred in disciplining him for “peaceable expressive conduct

and words.” Relying primarily on Constantine v. Rectors & Visitors of George Mason

University, 411 F.3d 474 (4th Cir. 2005), he applies Constantine’s tripartite test6 for evaluating a

First Amendment retaliation claim and contends that Tully should not have been entitled to

qualified immunity for sanctioning his conduct. But as noted above, the circuit court correctly

determined that Lohr did not plead a First Amendment retaliation claim against Tully. And the

circuit court did not evaluate Lohr’s claim against Tully as a retaliation claim; rather, it evaluated

6
See Constantine, 411 F.3d at 499 (noting that in a First Amendment retaliation claim
pursuant to 42 U.S.C.§ 1983, “[a] plaintiff seeking to recover . . . must allege that (1) she
engaged in protected First Amendment activity, (2) the defendants took some action that
adversely affected her First Amendment rights, and (3) there was a causal relationship between
her protected activity and the defendants’ conduct”).
- 16 -
that claim as pled by Lohr, as a facial and as-applied challenge to the constitutionality of

Virginia Tech’s student conduct policy. Applying the requisite legal tests for facial and

as-applied constitutional challenges, and then the two-part test for qualified immunity defenses,

the circuit court found that Tully was entitled to qualified immunity for disciplining Lohr.

Because Lohr’s argument on brief does not address the circuit court’s actual analysis of and

rulings on this issue, Lohr has waived his argument. See Barnes v. Commonwealth, 80 Va. App.

588, 595 (2024) (holding that appellant waived his assignment of error because it did not address

findings or rulings of the trial court, and thus did not comply with Rule 5A:20(c)(2)); Rule

5A:20(c)(2) (“An assignment of error that does not address the findings, rulings, or failures to

rule on issues in the trial court . . . is not sufficient.”).

Lohr next argues that the circuit court erred in granting Tully qualified immunity “as to

[his] compelled speech allegations, pertaining to [Tully’s] mandate that he write a letter of

acknowledgement.” Lohr’s accompanying argument on brief presents a series of compelled

speech cases and contends that Tully’s actions unconstitutionally compelled him to “affirm[] . . .

a belief and an attitude of mind concerning the inappropriateness of [his] conduct.” But even

assuming arguendo that Lohr’s argument establishes a violation of his First Amendment rights

against compelled speech, Lohr has waived his argument. Here, the circuit court applied the

two-part qualified immunity test with respect to Lohr’s compelled speech claim and found that

the claim failed to defeat qualified immunity on both prongs; that is, the circuit court found that

Lohr both failed to show a violation of a constitutional right and that the right was one “of which

a reasonable person would have known.” Cromartie, 298 Va. at 300 (quoting Harlow, 457 U.S.

at 818). Yet Lohr develops no argument on brief challenging the circuit court’s ruling on the

second prong of the qualified immunity test. Because the circuit court’s finding on the second

prong of the test was sufficient to sustain a qualified immunity defense and defeat Lohr’s claim,

• 17 - and Lohr fails to present an argument that the circuit court erred on the second prong, his

qualified immunity argument is waived.

E. Absolute Immunity

Lohr assigns error to the circuit court for “ruling that Tully was entitled to absolute

immunity.” We need not address this argument on appeal, because ultimately, the circuit court

made no such ruling.

In its first order sustaining the plea in bar and dismissing Lohr’s claims, the circuit court

found that “Tully, as an agent of the [BOV] is entitled to absolute and qualified immunity.” But

upon Lohr’s motion for reconsideration, the circuit court stayed that order. And following a

hearing on Lohr’s motion, when the circuit court entered its final order, it “clarif[ied] the nature

of the Defendants’ immunity” by ruling differently on Lohr’s claim against Tully. Rather than

ruling that Tully enjoyed both qualified and absolute immunity, the circuit court held that Tully

enjoyed qualified immunity, sustained her plea in bar on that ground and dismissed Lohr’s claim

with prejudice, and found that “[h]aving dismissed the claims [sic] against Defendant Tully, . . .

her Plea in Bar asserting absolute immunity is moot.” The circuit court’s final order thus

negated its prior ruling that Tully was entitled to absolute immunity, holding instead that because

the court had dismissed Lohr’s claim on the basis of Tully’s qualified immunity, the issue of

absolute immunity was rendered moot. Ultimately, therefore, the circuit court made no ruling on

the merits on the issue of absolute immunity.

Where, as here, “there is no ruling by the trial court on [an] issue,” there is “no basis for

review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526

(2006). Because the circuit court reconsidered its initial ruling on Tully’s absolute immunity,

held instead that the issue of absolute immunity was moot, and thus did not rule on Tully’s

absolute immunity, there is nothing for this Court to review on that issue.

• 18 - III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order sustaining the plea in bar.

Affirmed.

• 19 -