Present: All the Justices
GINA L. SCHAECHER, ET AL. OPINION BY v. Record No. 141480 JUSTICE LEROY F. MILLETTE, JR. June 4, 2015 ROBINA RICH BOUFFAULT
FROM THE CIRCUIT COURT OF CLARKE COUNTY John E. Wetsel, Jr., Judge
In this appeal we consider (1) whether any of nine
statements by the defendant are sufficiently defamatory in
nature to survive demurrer, and (2) whether the allegations
state a claim for tortious interference with contract.
I. FACTS AND PROCEEDINGS
This appeal arises from circumstances surrounding a
special use permit application regarding a prospective property
for 3 Dog Farm, LC, a company that provides rehabilitation
services to displaced companion canines. Plaintiff Gina
Schaecher owns both 3 Dog Farm and plaintiff Happy Tails
Development, LLC ("Happy Tails"), the contract purchaser of the
Clarke County property on which Schaecher intended to locate 3
Dog Farm. In accordance with Clarke County Zoning Ordinances,
Happy Tails applied for a special use permit on August 6, 2013,
requesting a permit to operate a boarding kennel of more than
five canine animals.
Plaintiffs allege that defendant Robina R. Bouffault, a
nearby neighbor and member of the Clarke County Planning Commission ("Planning Commission"), sent defamatory emails and
made false public statements defaming Schaecher and Happy
Tails. The allegations include two counts of defamation, one
on behalf of Schaecher and one on behalf of Happy Tails, and
one count of tortious interference with contractual relations
on behalf of Happy Tails. 1
The circuit court sustained Bouffault's initial demurrer,
granting plaintiffs leave to amend. The amended complaint
includes nine alleged defamatory statements. Eight of these
statements were sent in email form to some or all members of
the Planning Commission and other interested parties, and are
attached as exhibits to the amended complaint. 2 One of the
alleged defamatory statements was made to a local newspaper,
The Winchester Star, and is not attached as an exhibit.
Five of the emails and The Winchester Star comments
concern whether the kennel as proposed would comply with
conservation easements, private covenants, or county
1 Because these counts are pled separately, and because defamation against an individual is not necessarily defamation against her business and vice versa, Schaecher and Happy Tails will be referred to in this opinion as individual parties or collectively as "plaintiffs," as appropriate. 2 While it is not specifically pled that the recipients were members of the Planning Commission, the context of the emails makes this clear. In particular, Brandon Stidham, whose email signature identifies him as the Director of Planning, is a recipient of every email, and Bob Mitchell, identified by Bouffault in an email as the County Attorney, is a recipient of several emails.
2 ordinances. Plaintiffs allege that these statements
characterize Schaecher as a lawbreaker, one without integrity,
or one with disregard for the law, or imply that Happy Tails
was in violation of the law, and that defendant made these
statements with the intent to defame Schaecher and Happy Tails.
Two additional emails state that "It would appear that Mrs.
Schaecher was not totally truthful," and "I firmly believe that
Gina is lying and manipulating facts," respectively.
Plaintiffs allege that these statements impugn Schaecher's
honesty and harm the reputation of Happy Tails. Finally, one
email includes a remark by Bouffault regarding Schaecher's
sister Mary, who was to serve as the resident manager at the
kennel. The email states that "Mary had owned a property . . .
with her boyfriend – they have now split . . . but [she]
appears to be having difficulties in paying the mortgage . . .
foreclosure could be a possibility." Plaintiffs allege that
the statement defamed Schaecher and Happy Tails. The
individual statements are discussed in more detail in Part
II.A., infra.
Happy Tails also alleges that because of "false, reckless,
defamatory and/or misleading statements to the press, Clarke
County government officials, the planning commission and
members of the Board of Supervisors," Happy Tails incurred
additional costs due to delay in review of the special use
3 permit and in order to refute and remedy Bouffault's
statements. Additionally, "[u]pon information and belief,
[defendant] engage[ed] third parties to threaten and harass
persons who openly supported [Happy Tails'] proposed use for
the Property causing the Sellers' reservations in continuing
[Happy Tails'] Sales Contract." Happy Tails pled that
Bouffault's conduct delayed and increased costs such that the
Sales Contract became cost prohibitive and Happy Tails was
forced to terminate. An attached exhibit reflected a signed
Sales Contract that indicated settlement on the sale of the
property was to occur on May 30, 2014, one day after the
amended complaint was filed. Nothing in the attached exhibit
indicated that the contract had been terminated.
Bouffault again demurred to the amended complaint. The
circuit court ruled that the statements were not defamatory;
that the statements and actions complained of were "committed
incident to the performance of a legislative function of the
Defendant as a member of the Clarke County Planning Commission;
therefore, they are protected by legislative immunity"; and
that the allegations did not set forth a claim for tortious
interference with contract. The circuit court therefore
sustained the demurrer on all counts. We granted this appeal.
4 II. DISCUSSION
We review the circuit court's ruling on a demurrer de
novo. Schilling v. Schilling, 280 Va. 146, 148, 695 S.E.2d
181, 183 (2010). "A demurrer accepts as true all facts
properly pled, as well as reasonable inferences from those
facts." Steward v. Holland Family Props., LLC, 284 Va. 282,
286, 726 S.E.2d 251, 253 (2012).
A. Defamation
Virginia makes no distinction between actions for libel
and slander. Shupe v. Rose's Stores, Inc., 213 Va. 374, 375-
76, 192 S.E.2d 766, 767 (1972). In Virginia, when a plaintiff
alleges defamation by publication, the elements are "(1)
publication of (2) an actionable statement with (3) the
requisite intent." Tharpe v. Saunders, 285 Va. 476, 480, 737
S.E.2d 890, 892 (2013) (internal quotation marks omitted). In
the present case the elements of publication and intent are
sufficiently pled on the face of the pleading. This appeal
focuses on whether the statements pled are actionable.
An "actionable" statement is both false and defamatory.
Id. at 481, 737 S.E.2d at 892. Defamatory words are those
"tend[ing] so to harm the reputation of another as to lower him
in the estimation of the community or to deter third persons
from associating or dealing with him." Restatement (Second) of
Torts § 559; see Chapin v. Knight-Ridder, Inc., 993 F.2d 1087,
5 1092 (4th Cir. 1993)(applying Virginia law). A false statement
must have the requisite defamatory "sting" to one's reputation.
See Air Wis. Airlines Corp. v. Hoeper, ___ U.S.___, ___, 134
S.Ct. 852, 866 (2014) (focusing on "the substance, the gist,
the sting" of an allegedly defamatory statement); Curtis Pub.
Co. v. Butts, 388 U.S. 130, 138 (1967)(referring to the
defamatory implication as the "sting of the libel").
Characterizing the level of harm to one's reputation
required for defamatory "sting," we have stated that defamatory
language "tends to injure one's reputation in the common
estimation of mankind, to throw contumely, shame, or disgrace
upon him, or which tends to hold him up to scorn, ridicule, or
contempt, or which is calculated to render him infamous,
odious, or ridiculous." Moss v. Harwood, 102 Va. 386, 392, 46
S.E. 385 (1904); see Adams v. Lawson, 58 Va. (17 Gratt.) 250,
255-56 (1867) ("It is sufficient if the language tends to
injure the reputation of the party, to throw contumely, or to
reflect shame and disgrace upon him, or to hold him up as an
object of scorn, ridicule or contempt."); see also Moseley v.
Moss, 47 Va. (6 Gratt.) 534, 538 (1850) (actionable defamation
"tend[s] to make the party subject to disgrace, ridicule, or
contempt"). Each of these descriptions connotes the requisite
defamatory "sting," while "language that is insulting,
offensive, or otherwise inappropriate, but constitutes no more
6 than 'rhetorical hyperbole'" is not defamatory. Yeagle v.
Collegiate Times, 255 Va. 293, 296, 497 S.E.2d 136, 137 (1998).
We recently had occasion to restate the historical
elements of a common law defamation pleading:
A common law complaint for libel or slander historically included three elements: the inducement, an explanation of the facts demonstrating that the allegedly defamatory statement is actionable; the colloquium, an explanation of how the allegedly defamatory statement refers to the plaintiff, if he is not explicitly named; and the innuendo, an explanation of the allegedly defamatory meaning of the statement, if it is not apparent on its face.
Webb v. Virginian-Pilot Media Cos., 287 Va. 84, 88, 752 S.E.2d
808, 811 (2014) (citing Black's Law Dictionary 300, 845, 861
(9th ed. 2009)). In the case at bar, the question before the
Court is whether the statements are either defamatory on their
face or contain sufficient innuendo to imply defamatory
meaning; we must also consider whether the statements
constitute protected First Amendment speech.
In evaluating whether language is actionable, we take all
inferences in favor of the plaintiff, but such inferences
cannot rise above the language of the documents or statements
themselves:
In determining whether the words and statements complained of . . . are reasonably capable of the meaning ascribed to them by innuendo, every fair inference that may be drawn from the pleadings must be resolved in the plaintiff's favor. However, the meaning of the alleged defamatory language can not, by innuendo, be extended beyond its ordinary and common
7 acceptation. The province of the innuendo is to show how the words used are defamatory, and how they relate to the plaintiff, but it can not introduce new matter, nor extend the meaning of the words used, or make that certain which is in fact uncertain.
Id. at 89-90, 752 S.E.2d at 811 (quoting Carwile v.
Richmond Newspapers, Inc., 196 Va. 1, 8, 82 S.E.2d 588, 592
(1954)).
To determine whether a statement can be reasonably
understood as stating or implying actual facts, whether those
statements are verifiable, and whether they are reasonably
capable of defamatory meaning, we must examine them in context:
Although varying circumstances often make it difficult to determine whether particular language is defamatory, it is a general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used.
Carwile, 196 Va. at 7, 82 S.E.2d at 591-92; accord Farah v.
Esquire Magazine, 736 F.3d 528, 535 (D.C. Cir. 2013)
("[T]he publication must be taken as a whole, and in the
sense in which it would be understood by the readers to
whom it was addressed." (internal quotation marks and
citations omitted.)).
With these principles in mind, a court must decide as a
threshold matter of law whether a statement is reasonably
capable of defamatory meaning before allowing the matter to be
8 presented to a finder of fact. Perk v. Vector Res. Group,
Ltd., 253 Va. 310, 316-17, 485 S.E.2d 140, 143-44 (1997). To
perform this gatekeeping function, we turn to the statements at
issue today.
1. Statements Pertaining to Prospective Violations of Easements, Covenants, or Ordinances
Plaintiffs' amended complaint includes as exhibits a
number of emails in which Bouffault expresses concern that
plaintiffs' plans for the property do not comply with
easements, covenants, or ordinances. Plaintiffs allege that
these emails are defamatory. We disagree.
a. Contents of the Emails
The first email (Exhibit B) indicates that Bouffault is
"attaching a[n applicable] Conservation Easement document,
where you will see on the 5th page the highlighted paragraph
that would appear to prohibit a commercial dog kennel on the
easement." Plaintiffs allege that Bouffault knew or should
have known that the conservation easement authority had
communicated its approval of the use detailed in the special
use permit application. They allege that her statement was
false, misleading, tending to indicate that Schaecher was a
"law breaker or a person of disregard for . . . legal
obligations," and intended to harm the reputation of Happy
Tails.
9 Another disputed email (Exhibit D) pertains to property
covenant restrictions in the deed regarding dwelling size:
Bouffault states that the plan for the property does not meet
the requirements.
Two emails from Bouffault (Exhibits E and F) pertain to
county ordinances regarding single-family detached dwellings on
residential properties. Bouffault states that the caretaker's
residence does not meet the ordinance requirements, and further
states her understanding that the Schaecher family will not be
immediately moving to the property, which Bouffault asserts
changes the nature of the application.
Finally, an email from Bouffault to Schaecher, copied to
Planning Commission members (Exhibit H), raises Bouffault's
concerns over breaches in private covenants.
b. Requisite Defamatory "Sting"
The potential violation of an easement, referenced in
Exhibit B, does not as a general principle carry the "sting" of
a reprehensible crime. The mere implication that one might be
in violation of an easement, absent more – such as inflammatory
language or context to suggest that the statement causes
particular harm to one's reputation – does not rise to the
level of defamation. It does not so "harm the reputation of
another as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him,"
10 Restatement (Second) of Torts § 559, such as by making the
plaintiff appear odious, infamous, or ridiculous, or subjecting
her to contempt, scorn, shame, or disgrace.
Similarly, the potential violation of covenant
restrictions, referenced in Exhibits D and H, does not alone
carry the requisite defamatory "sting." Covenant restrictions
are contractual in nature, Black's Law Dictionary 443 (10th ed.
2014), and the breach of a contract does not necessarily bring
with it defamatory connotation. We do not hold that
accusations of violations of covenants or easements are never
defamatory as a matter of law, merely that they are not
inherently defamatory. Based on the neutral language of these
emails and their context, even construing them in the light
most supportive of the plaintiff, there is nothing to aggravate
the plain language of the emails to suggest they are
defamatory.
As to Exhibits E and F, the legislative nature of an
ordinance may carry a law-breaking implication above that
inherent in a charge of breach of a covenant or easement.
However, plaintiffs face the same essential challenges: the
potential violation of a county ordinance by a proposed
dwelling plan does not in and of itself rise to the level of
defamation. An accusation of ordinance violations may in some
contexts carry defamatory "sting," but the ordinance at issue
11 here pertains to the requirements of a free standing dwelling
unit. It is thus not apparent on the face of the document how
this violation would render the plaintiffs odious, infamous, or
ridiculous, or otherwise subject them to contempt, shame,
scorn, or disgrace.
The face of these emails does not reasonably convey
defamatory "sting." We thus turn to the innuendo articulated
in the pleading, explaining the allegedly defamatory meaning,
to consider whether the pleading guides us to a defamatory
implication in the words that is not immediately apparent.
Webb, 287 at 88, 752 S.E.2d at 811.
c. Alleged Innuendo
As previously addressed, innuendo may not extend beyond the
meaning of the words in the statement. Id. at 90, 752 S.E.2d
at 811. Upon review of the amended complaint, we find that the
language of the emails does not support the innuendos pled by
Schaecher and Happy Tails.
As to the easement referenced in Exhibit B, Schaecher
alleges that the intent of the email was to characterize her as
a "law breaker" or "a person of disregard for the legal
obligations pertaining to the Property." The statement that
one's proposed project is apparently prohibited by an easement
does not, by innuendo, rise to the level that Schaecher
proposes. First, while an easement is a legal obligation
12 imposed upon the owners of the property, breach of an easement
does not have the stigma of "law breaker" that Schaecher
pleads. Second, the content of the email was entirely
descriptive of the current status of the plan and contained no
predictions regarding the future. Bouffault professed no
knowledge as to whether Schaecher would go forward with the
project as planned if it were in fact in violation of the
easement discussed. As is obvious from the context of the
case, the project was not built at the time of the email, but
rather was in the process of obtaining the required variances
and engaging in other negotiations. As of the time of this
email, there clearly was no kennel operating on the property,
so Schaecher and Happy Tails could not yet have been in
violation of any easement. Consequently, there was no
actionable injurious factual assertion made as a "reasonable
implication" of the published statement. Carwile, 196 Va. at
9, 82 S.E.2d at 592. Thus, the ordinary and common import of
the language of the email does not convey that she is a "law
breaker" or "a person of disregard for the legal obligations
pertaining to the Property," as Schaecher alleges. 3
3 The amended complaint does not plead with specificity in what manner the purported breach of easement harms the reputation of Happy Tails. We are left to conclude that Happy Tails is generally asking the Court to infer that the community would find a business without regard for easements to be odious, infamous, ridiculous, contemptible, or subject to
13 For the same reasons, the emails addressing private
restrictive covenants in Exhibits D and H fall short of the
innuendo alleged in the complaint, which avers that the reader
would infer that plaintiffs were "breaking the law and/or
otherwise disregarding legal obligations" or "in violation of
private legal obligations." First, a private restrictive
covenant is contractual in nature, and plaintiffs would not be
in violation of "law" if they were to breach such a covenant.
Second, because the email merely describes the state of the
current plan — a structure not yet built — Bouffault is
likewise not accusing plaintiffs of actively violating covenant
restrictions. The email expresses no position as to the future
plans of Schaecher or Happy Tails: a reader could equally or
more reasonably infer that the proposed plans simply needed to
be amended. The language in the email itself does not support
the innuendo that plaintiffs allege.
The plaintiffs argue that the innuendo present in the
residential ordinance emails (Exhibits E and F) suggests that
plaintiffs are "in violation of the law," harming the
reputation of Schaecher and Happy Tails. The language of the
emails once again does not support plaintiffs' argument. The
disgrace, scorn, or shame, or that the business is tarnished by such aspersions cast upon Schaecher, its owner. In either case, for the reasons discussed in relation to Schaecher, the statement is not defamatory as to Happy Tails.
14 emails reflect only a belief on the part of Bouffault that the
current plans for the kennel violate the requirements for a
free standing residential dwelling. Proposing a plan for a
dwelling that does not comply with residential dwelling
requirements is not a violation of a law, nor does neutral
language stating that a plan does not align with current
ordinances create "a reasonable implication" from which to
infer one would violate the law. Carwile, 196 Va. at 9, 82
S.E.2d at 592. There is nothing in the statements to indicate
that plaintiffs plan on violating the law.
Neither aspersions reasonably apparent from the face of
these emails or innuendo reasonably apparent from their context
provide sufficient defamatory "sting" to make them actionable
against the defendant on behalf of either Schaecher or Tails.
2. Statements to The Winchester Star
Plaintiffs allege that Bouffault made the following
statements regarding the special use permit application in The
Winchester Star: (1) "Conservation easements usually allow
only agricultural enterprises"; (2) "A dog kennel is not an
agricultural enterprise"; and (3) "40 dogs barking would
probably constitute noise pollution."
The first two statements allegedly made by Bouffault are
not defamatory for the reasons discussed in Part II.A.1.,
supra: they lack the requisite defamatory "sting." Assuming
15 for the sake of argument that the third statement contained
defamatory "sting," it is not actionable, as it cannot be
proven false. See Cashion v. Smith, 286 Va. 327, 336, 749
S.E.2d 526, 531 (2013); see also Milkovich v. Lorain Journal
Co., 497 U.S. 1, 19-20 (1990).
For a statement to be actionable, it must "have a provably
false factual connotation and thus [be] capable of being proven
true or false." Cashion, 286 Va. at 336, 749 S.E.2d at 531
(internal quotation marks omitted); accord Potomac Valve &
Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1288 (4th
Cir. 1987) ("[T]he verifiability of the statement in question
[is] a minimum threshold issue. If the defendant's words
cannot be described as either true or false, they are not
actionable."). The term "noise pollution" is not identified by
the plaintiffs as a quantifiable term in Clarke County. The
pleading references no standard by which one could assess
whether the statement is in fact false. The statements
allegedly made to the Winchester Star are thus not actionable
as to either plaintiff.
3. Statement Regarding "Sister Mary"
One email (Exhibit G) provides a highly detailed report of
Bouffault's trip to a "get together" that was occurring on the
property "for the adjoining neighbors, to discuss and show them
where the kennels were to be." Bouffault indicates that
16 Schaecher's sister Mary is to be the on-site caretaker and adds
the following parenthetical: "(Note: Sister Mary had owned a
property in Bluemont with her boyfriend – they have now split,
and she has the property, but appears to be having difficulties
in paying the mortgage, resulting in mortgage modifications,
etc. – foreclosure could be a possibility.)"
Here, we conclude that neither Gina Schaecher nor Happy
Tails could bring a claim for defamation based upon this
statement, as it is not "of and concerning" either party.
Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738
(1985). A pleading for defamation must allege or otherwise
make apparent on the face of the pleading that the alleged
defamatory statements are "of and concerning" the plaintiff.
Dean v. Dearing, 263 Va. 485, 488, 561 S.E.2d 686, 688 (2002).
While in some cases a business may bring a defamation
action on its own behalf when one of its employees is allegedly
defamed, there must be a sufficient nexus between the alleged
defamatory nature of the statement and the business:
Authorities dealing with the subject generally hold that an imputation defamatory to stockholders, officers, or employees of a corporation does not constitute defamation of the corporation itself in the absence of an allegation of special damages. Prosser, Law of Torts § 106 (3d ed. 1964); Restatement of Torts § 561(1) cmt. a; 53 C.J.S. Libel and Slander § 34, at 83.
. . . .
17 Life Printing & Publishing Co. v. Field, 324 Ill.App. 254, 58 N.E.2d 307 (1944), involved a newspaper article implying that the publisher of the corporate plaintiff was one of the founders of an anti-Semitic organization. In holding that the publication was not libelous per se as to such corporate plaintiff, the Court said the following at page 310: . . . "Words spoken or written of a stockholder or officer give no right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation. If they relate solely to the stockholder, officer, or employee in his private or personal capacity, only the individual can complain."
Novick v. Hearst Corp., 278 F.Supp. 277, 279-80 (D. Md. 1968).
Bouffault's statement does not impugn Mary's ability as a
caretaker of dogs, and plaintiffs have not alleged any other
sufficient nexus that Mary's living situation has with the
business. While the above excerpt does not foreclose the
possibility of special damages, Happy Tails did not plead
special damages. Where a plaintiff does not prevail on a claim
of defamation per se, and has not alleged or stated proof of
special damages, the plaintiff may not proceed. Weaver v.
Beneficial Finance Co., 200 Va. 572, 579, 106 S.E.2d 620, 625
(1959).
No Virginia precedent would support the proposition that
Gina Schaecher could state a defamation claim "of and
concerning" her, as owner of her business, based on a statement
made against one of her employees but unrelated to the work.
Corporate owners generally cannot personally pursue an action
for defamation of their corporation, because the corporate
18 entity is "itself the only person entitled to recover for
injuries to its business, profits or property." Landmark
Commc'ns, Inc. v. Macione, 230 Va. 137, 140, 334 S.E.2d 587,
589 (1985). For Gina Schaecher to proceed on her own behalf, a
sufficient nexus must be pled to show how the allegedly
defamatory statement degrades the reputation of, and is "of and
concerning," Gina Schaecher. Such a nexus is not alleged in
the pleadings of this case.
4. Emails Impugning Honesty
Plaintiffs raise two statements that pertain to the
honesty of Schaecher in Happy Tails' special use permit
application proceedings. The first truth-related email
(Exhibit C) relays information pertaining to prior deferred
kennel applications from Loudoun County, provides a link to 3
Dog Farm's website, and concludes based on the relayed
information that "It would appear that Mrs. Schaecher was not
totally truthful. . . ." in stating that the family did not
currently have a commercial kennel. The final email (Exhibit
I) describes to Brandon Stidham and Jesse Russell apparent
discrepancies between the Planning Commission's initial
understanding of the use of Schaecher's property and
Schaecher's current characterization, states that Schaecher has
twice stated that Russell is lying, encourages that all
communication with her be in writing only, and states "I firmly
19 believe that Gina is lying and manipulating facts to her
benefit. . . ."
a. Requisite Defamatory "Sting"
As with the previous statements, aspersions related to
honesty are subject to an evaluation as to the requisite level
of "sting." Libelous aspersions impugning honesty have long
been accepted in the Commonwealth as potentially defamatory in
nature. See Adams, 58 Va. at 255-57 (holding that a written
charge advising another to "quit lying" is actionable because
it implies that he has been lying, and tends to injure the
reputation of the party and to hold him as an object of
contempt). The Supreme Court of the United States has also
explained that, in the proper context, an accusation that one
is a liar is grounds for defamation. See Milkovich, 497 U.S.
at 20-23 & n.7. As with all evaluations of defamatory
statements, however, context is of the utmost importance. See
Carwile, 196 Va. at 7-9, 82 S.E.2d at 591-92; see also Farah,
736 F.3d at 535. Reputation must be affected to a magnitude
sufficient to render one odious, infamous, or ridiculous, or
subject to disgrace, shame, scorn, or contempt.
The context of the emails assists us in analyzing these
two statements. In the first instance, Bouffault shares
information with Planning Commission members concerning one
question Schaecher had been asked about whether she has a
20 commercial kennel operation. Schaecher apparently answered
that she did not have a commercial kennel, but had six dogs of
her own. Bouffault shared two prior kennel applications from
Loudoun County that had been "deferred," as well as a link to a
website for 3 Dog Farm, which Bouffault stated represented a
commercial kennel offering. She then concludes, "It would
appear that Mrs. Schaecher was not totally truthful . . . ."
Bouffault's email presents some evidence that appears to,
but does not conclusively, contradict Schaecher's prior
statement. 4 Bouffault's concluding sentence is in the nature of
a summary that hedges her prior statement (". . . not totally
truthful" (emphasis added)). While this characterization is
unpleasant, "[m]erely offensive or unpleasant statements are
not defamatory." Chapin, 993 F.2d at 1092. It is married to a
single and relatively benign particular fact regarding whether
Schaecher was operating a commercial kennel, and so does not
necessarily impugn Schaecher's character as a whole. It does
not meet the threshold for defamatory "sting" to engender
disgrace, shame, scorn, or contempt, or to render one odious,
infamous, or ridiculous.
On the other hand, the statement that "I firmly believe
that Gina is lying and manipulating facts to her benefit" does
4 The Loudoun County applications were from 2008 and 2010, respectively.
21 not hedge. The statement is in the context of an email that
alleges repetitive lying by Schaecher to the Planning
Commission, states that all dealings must be in writing
("EVERYTHING with her in writing only"), and implies that
Bouffault believes Schaecher cannot be trusted ("TRUST NO
ONE"). The face of the email alleges that, in her dealings
with the Planning Commission, Schaecher was lying and
manipulative. As such, this statement can reasonably be
understood as an aspersion cast on Schaecher's reputation and
character: the perception that one is deliberately lying and
manipulating facts throughout a governmental process is
sufficiently damaging to one's reputation so as to deter others
from associating with her and render her contemptible in the
estimation of the community. Thus, this statement has the
requisite defamatory "sting," but that does not end our
inquiry.
b. Protected Fact-Based Opinion
The above statement is also couched in language suggesting
that it may be an opinion. As we have previously noted:
Causes of action for defamation have their basis in state common law but are subject to principles of freedom of speech arising under the First Amendment to the United States Constitution and Article I, Section 12 of the Constitution of Virginia. The United States Supreme Court has identified constitutional limits on the type of speech that may be the subject of common law defamation actions. Thus, speech which does not contain a provably false factual connotation, or
22 statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a common law defamation action.
Yeagle, 255 Va. at 295, 497 S.E.2d at 137 (footnote omitted)
(citing Milkovich, 497 U.S. at 16-17, 20).
Whether an alleged defamatory statement contains a
provably false factual connotation or is a "pure expression[]
of opinion" is a question of law that we examine de novo.
Tharpe, 285 Va. at 481-82, 737 S.E.2d at 893. In so doing, "we
do not determine whether the alleged defamatory statement is
true or false, but whether it is capable of being proved true
or false." Id. at 482, 737 S.E.2d at 893.
As a preliminary matter, we have long stated that "it is
not necessary to make a writing libelous that the imputations
should be made in the form of positive assertion." Adams, 58
Va. at 256. Therefore, "'[s]imply couching . . . statements in
terms of opinion does not dispel [factual] implications.'"
Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 303, 641
S.E.2d 84, 91 (2007) (quoting Milkovich, 497 U.S. at 19).
Consequently, the preamble "I firmly believe" does not provide
Bouffault with shelter if the remainder of her statement
contains a provably false connotation.
The standard previously articulated by this Court is
whether a statement can be "reasonably be understood . . . to
convey a false representation of fact." Yeagle, 255 Va. at
23 296, 497 S.E.2d at 137 (quoting Crawford v. United Steel
Workers, AFL-CIO, 230 Va. 217, 234-35, 335 S.E.2d 828, 839
(1985)). Accordingly, we have held that clear "rhetorical
hyperbole" is not defamatory. Yeagle, 255 Va. at 297, 497
S.E.2d at 138. Consistent with this approach, in Chaves v.
Johnson, 230 Va. 112, 118-19, 335 S.E.2d 97, 101 (1985), this
Court held that statements that plaintiff's fees were
"excessive" and that he was "inexperienced" were not
defamatory, as the "relative nature of such opinions is obvious
to anyone who hears them."
In Chaves and Yeagle, an average person could identify the
language used as being relative or hyperbolic statements of
opinion. The same cannot be said for an accusation of lying
and manipulating facts: such statements can imply underlying
facts, and "opinions may be actionable where they 'imply an
assertion' of objective fact." Raytheon, 273 Va. at 303
(quoting Milkovich, 497 U.S. at 21).
If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.
Milkovich, 497 U.S. at 18-19. Thus, we consider whether the
facts underlying Bouffault's statement might be incorrect or
24 incomplete, or whether her assessment of them is erroneous so
as to imply a false assertion of fact. In doing so, we must
continue to consider the context and the audience.
The accusation that Schaecher was lying, which Schaecher
alleges was false, arose in a longer email from Bouffault to
two Planning Commission members:
What you sent was in the packet of September. So, are you telling me that there is NO DESCRIPTION detailing what is going to be done contained as an integral part of the application? And that everything that Jesse outlined in the Case Summary is from VERBAL conversations with the applicant? You have nothing in writing? In her letter of October 3d, Gina states on the second page that "As a point of clarification, we do note that the description of our project on the agenda remains inconsistent with the purpose and nature of our project." And then goes on with a blurb very different from what was originally placed in the Case Summary.
Our application documents are in SERIOUS need of revision. This is the second time that Gina has effectively stated that you, Jesse, are not stating facts correctly (i.e. you are lying): you stated CLEARLY to the commissioners at our Sept. briefing meeting that Gina and her family were going to move to Clarke and live on the property, then Gina said no, not true, when questioned at the Sept. Friday meeting. She now says that what has been stated is "inconsistent" with "the purpose and nature of our project."
Bouffault's statement that she "firmly believe[s] that Gina is
lying and manipulating facts to her benefit" immediately
follows.
It is particularly noteworthy that Schaecher did not plead
that the factual allegations in the above email were incomplete
25 or generally false – in other words, Shaecher did not deny that
there were inconsistencies between her understanding of events
and that of the Planning Commission – merely that it was not
true that she lied. There are several possible explanations
for a discrepancy between Schaecher's current characterization
of the project and the version on record with the Planning
Commission or in Jesse Russell's memory: mistake,
miscommunication, deliberate lying, or a genuine evolution of
external facts that produced a change of circumstances. The
potential defamation arises only from the implication that
Schaecher lied, as opposed to the alternatives, the
implications of which lack defamatory "sting." Thus, Schaecher
does not contend that the facts underlying the accusation are
incomplete or untrue, but rather that the conclusion that she
lied is incorrect and thus implies a defamatory fact.
The email appears to fully disclose the basis of
Bouffault's rationale. See Biospherics, Inc. v. Forbes, Inc.,
151 F.3d 180, 185 (4th Cir. 1998) (opinions fully disclosing
their factual bases constitute a subjective view and are not
actionable); Phantom Touring, Inc. v. Affiliated Publications,
953 F.2d 724, 730 (1st Cir. 1992) (where "all sides of the
issue, as well as the rationale for [the speaker's] view, were
exposed, the assertion of deceit reasonably could be understood
only as [the speaker's] personal conclusion about the
26 information presented"); see also Standing Comm. on Discipline
of the United States Dist. Court v. Yagman, 55 F.3d 1430, 1439
(9th Cir. 1995) ("A statement of opinions on fully disclosed
facts can be punished only if the stated facts are themselves
false and demeaning."). As Schaecher has not pled that the
stated facts are themselves false and defamatory, in order for
Bouffault's statements to be defamatory, it would have to be
reasonable for Russell or Stidham to perceive that Bouffault
had an implied factual basis for her accusation that Schaecher
was lying of which they were unaware.
However, the two individuals to whom Bouffault sent the
email, Russell and Stidham, possessed a high degree of
familiarity with the situation. Given that Russell was the one
allegedly lied about, and Stidham was the Director of the
Planning Commission, the two hold an equal or higher degree of
knowledge of the situation than Bouffault. In exercising our
gatekeeper function, we must therefore conclude that a
reasonable person in Russell or Stidham's positions would have
perceived the accusation as a pure opinion on the part of
Bouffault based upon her subjective understanding of the
underlying scenario and not upon an implied factual predicate
of which they were unaware.
Thus, because of Russell and Stidham's knowledge of the
factual basis for Bouffault's statement, in the absence of a
27 claim that the stated underlying facts themselves were false
and defamatory, and because the context of the email and the
positions of Russell and Stidham would allow them to reasonably
conclude that Bouffault's statement was purely her own
subjective analysis, the statement is protected by the First
Amendment and is not actionable.
As we have concluded that none of the statements are
actionable, we do not reach the assignment of error pertaining
to legislative immunity.
B. Tortious Interference with Contractual Relations
The circuit court concluded that Happy Tails failed to
plead a cause of action for tortious interference with
contractual relations. We agree.
In Virginia, the elements of a claim for tortious
interference with contractual relations are typically recited
as (1) the existence of a valid contractual relationship or
business expectancy; (2) knowledge of the relationship or
expectancy on the part of the interferor; (3) intentional
interference inducing or causing a breach or termination of the
relationship or expectancy; and (4) resultant damage to the
party whose relationship or expectancy has been disrupted.
Chaves, 230 Va. at 120, 335 S.E.2d at 102. At issue today is
whether Happy Tails properly pled the third element.
28 Bouffault argues that this third element requires direct
competitive interference with a contract, and that as she was
not a competitor for the land purchase contract involved in
this case, she cannot be liable for tortious interference with
that contract under applicable Virginia precedent. She argues
that, as a neighbor and Planning Commission member, she was far
removed from the contractual negotiations. Bouffault also
argues that any termination of contract on the part of Happy
Tails was voluntary, not "caus[ed]" or "induc[ed]."
In essence, the parties agree that existing Virginia case
law explicitly covers the scenario addressed in the Restatement
(Second) of Torts § 766, "Intentional Interference with
Performance of Contract by Third Person." Happy Tails argues
that our precedent in Duggin v. Adams, 234 Va. 221, 360 S.E.2d
832 (1987), stands for the proposition that a plaintiff who
alleged he was deliberately misled into giving up contractual
rights stated a claim for tortious interference, and in doing
so implicitly endorses the doctrine set forth in the
Restatement (Second) of Torts § 766A, "Intentional Interference
with Another's Performance of His Own Contract." The Reporters
Notes to § 766A indicate that while the section is new, it was
"tacitly presented" in § 766. Two areas in which § 766A is
more explicitly broad than the former section is that it allows
for more indirect interference on behalf of the defendant and
29 allows for recovery of damages against a defendant who makes a
contract more burdensome or expensive.
We do not reach this issue today. Even under the broader
language of § 766A advanced by Happy Tails, its pleading fails.
Happy Tails attaches to its pleading multiple iterations of the
contract for the sale of real property. It does not appear to
have become more expensive: the percentage for a deposit and
total cost remain the same. Although Happy Tails alleges that
it was terminated, the last iteration of the contract was
signed and indicates that settlement would occur the day after
the amended complaint was filed. In short, nothing in the
contract indicates that it has been terminated. A court
considering a demurrer may ignore a party's factual allegations
contradicted by the terms of authentic, unambiguous documents
that properly are part of the pleadings. Ward's Equipment,
Inc. v. New Holland North America, Inc., 254 Va. 379, 381-84,
493 S.E.2d 516, 518-520 (1997).
Additionally, the specific allegation advanced by Happy
Tails is not that Bouffault increased the cost of her contract,
leading to its termination, but rather that Bouffault's actions
required hiring "engineers, consultants, scientists, appraisers
and/or additional services . . . to refute and address
Defendant's defamatory statements." Happy Tails does not
allege that the contract became any more expensive or
30 burdensome, and so does not meet the pleading requirements for
tortious interference with contractual relations. We therefore
agree with the circuit court.
III. CONCLUSION
For the aforementioned reasons, we will affirm the
judgment of the circuit court.
Affirmed.