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Martin v. Ziherl1/14/2005
In this appeal we consider whether Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), which disallows tort recovery for injuries suffered while participating in an illegal activity, precludes Muguet S. Martin from maintaining a tort action against Kristopher Joseph Ziherl for injuries allegedly inflicted during sexual intercourse, a criminal act of fornication proscribed by Code § 18.2-344, in light of the decision of the Supreme Court of the United States in Lawrence v. Texas, 539 U.S. 558 (2003), holding unconstitutional a Texas penal statute prohibiting certain sexual acts.
FACTS
Because the case was decided on demurrer, we recite the facts contained in the pleadings and all reasonable inferences therefrom in the light most favorable to the plaintiff. McDermott v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903 (2000). Martin and Ziherl were unmarried adults in a sexually active relationship from approximately October 31, 2001 through November 3, 2003. Martin experienced a vaginal outbreak in June 2003, which her physician diagnosed as herpes. Martin filed a motion for judgment against Ziherl alleging that he knew he was infected with the sexually transmitted herpes virus when he and Martin were engaged in unprotected sexual conduct, knew that the virus was contagious, and failed to inform Martin of his condition. In the two-count motion for judgment, Martin asserted claims of negligence, intentional battery and intentional infliction of emotional distress and sought compensatory and punitive damages.
Ziherl filed a demurrer asserting that Martin's injuries were caused by her participation in an illegal act and therefore, under Zysk, the motion for judgment did not state a claim upon which relief could be granted. Following a hearing, the trial court applied Zysk and sustained Ziherl's demurrer holding that Lawrence did not "strike down" Code § 18.2-344 and that valid reasons such as the protection of public health and encouraging marriage for the procreation of children are "rationally related to achieve the objective of the statute." We awarded Martin an appeal.
DISCUSSION
Before turning to the merits of Martin's appeal, we consider Ziherl's assertion that Martin lacks "standing" to challenge the constitutionality of Code § 18.2-344. In making his "standing" argument, Ziherl refers to the lack of real or threatened prosecution of Martin under Code § 18.2-344 and states that invalidation of the statute would not impact her liberty interest but, instead, would only allow her to maintain her action for damages. Regardless of the approach, well established law precludes us from considering Ziherl's "standing" challenge.
A basic principle of appellate review is that, with few exceptions not relevant here, arguments made for the first time on appeal will not be considered. Ziherl did not assert before the trial court that Martin lacked "standing" to challenge the constitutionality of Code § 18.2-344. We have repeatedly held that challenges to a litigant's standing must be raised at the trial level, and the failure to do so precludes consideration of a litigant's standing by this Court on appeal. In Walt Robbins, Inc. v. Damon Corp., 232 Va. 43, 348 S.E.2d 223 (1986), the Court considered whether the appellee's mechanics' lien was unenforceable for failure to make the trustees and the beneficiary of the antecedent deed of trust parties to the suit to enforce the lien. Id. at 46, 348 S.E.2d at 225. On appeal, the appellee challenged the "appellants' standing to assert the rights of the trustees and beneficiary," but the Court refused to consider this argument, finding that it had been waived for failure to preserve it in the lower court
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