Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Argument not preserved in defamation appeal

Argument not preserved in defamation appeal

Where plaintiff sued defendant for defamation and did not respond to defendant’s demurrer, in which she argued that he did not properly allege a defamation claim, plaintiff cannot now argue otherwise on appeal.


Brayboy sued Durrette, who worked at his child’s elementary school, alleging that her statements regarding events that took place at the school were defamatory.

In her demurrer to Brayboy’s amended complaint, Durrette argued that he had not properly stated a defamation claim. In a plea in bar, she raised sovereign immunity, statutory immunity and statute of limitations issues. Brayboy did not file written responses and instead moved to file a second amended complaint.

At a hearing, the circuit court denied the motion. As to the demurrer, Durrette asserted, among other things, that “[t]here’s no allegation to state which specific statements are complained of, who made them, or how they meet the elements required to articulate the minimum elements of a defamation claim.”

Brayboy argued against only the plea in bar, claiming that Durrette was not entitled to sovereign and statutory immunity. “Although Brayboy asked the circuit court to ‘overrule the demurrers,’ he argued the circuit court should do so because ‘sovereign immunity does not stand against employees who act outside the scope of their employment with intention or actual malice to commit harm.’ Brayboy did not, however, address the grounds of the demurrer or the arguments made by Durrette to support her demurrer.”

The circuit court sustained both the demurrer and the plea in bar and dismissed the case without leave to amend.

Not preserved

“On appeal, Brayboy contends the circuit court erred in sustaining the demurrer to his defamation claim against Durrette because his amended complaint adequately identified defamatory statements concerning Brayboy made by Durrette. According to Brayboy, his amended complaint alleged that ‘Durrette falsely asserted to others that Brayboy called her a “bitch”’ and that Durrette was involved in the circulation of an e-mail accusing Brayboy of engaging in ‘disorderly conduct.’ …

“Brayboy did not make these arguments – or any legal argument in opposition to the demurrer – to the circuit court. Accordingly, Brayboy failed to preserve these arguments for appeal. …

“Brayboy’s failure to preserve the arguments he makes to support his assertion that the circuit court erred in sustaining Durrette’s demurrer to the defamation claim against her renders moot our consideration of his assertion that the circuit court erred in sustaining Durrette’s plea in bar of sovereign immunity to the defamation claim against her.”

Brayboy v. Durrette. Record No. 180426 (Order) Aug. 27, 2019 (Appeal from Henrico Circuit Court). Andrew Thomas Bodoh, Julie Amarie Currin for Appellant. John David McChesney for Appellee. VLW 019-6-067, 6 pp.

VLW 019-6-067

Virginia Lawyers Weekly