Virginia Lawyers Weekly VA Lawyers Weekly
Where a plaintiff asserted claims for defamation per se and insulting words against a bank and its attorney, but did not identify any actionable statements in a letter the attorney sent to the plaintiff, defendants’ demurrers are granted and plaintiff is denied leave to amend his complaint.
Background
Plaintiff Harrup owns a real estate business. He signed a deed of trust with Blue Ridge bank in exchange for a $1 million loan. The deed of trust restricted the sale of property subject to a lien. However, “Harrup Real Estate sold the Property to New Costa Properties, LLC[.] …
“[T]he title search did not reveal the liens Blue Ridge Bank had on the Property. This clear inaccuracy did not deter the Plaintiff. He signed the Deed of Bargain and Sale in his capacity as owner of Harrup Real Estate conveying the Property to New Costa Properties.
“That same day, he signed a No Financing Agreement in his personal capacity recognizing that he owned the Property without any liens or encumbrances.”
Royer, an attorney for Blue Ridge, sent plaintiff a letter. “Blue Ridge Bank discovered the Plaintiff sold the Property to New Costa Properties without adhering to the provisions in the Deed of Trust and asserted that the representations made by the Plaintiff in the No Financing Agreement were knowingly false.
“The Plaintiff filed a Complaint against Blue Ridge Bank, Mr. Royer, and Royer Caramanis one year later, alleging two counts: defamation per se and insulting words.” The court granted defendant’s motion craving oyer for the five documents attached to Royer’s letter.
All three defendants demurred. Royer and his firm filed a plea in bar and moved for sanctions.
Discussion
A plaintiff claiming defamation per se must demonstrate that: (1) there was a publication about the plaintiff or his business, (2) the publication contained an actionable statement; and (3) the defendant(s) had the request intent to defame the plaintiff. …
“The Plaintiff argues that the statements in the Royer Letter affect his reputation as the owner of Harrup Real Estate. He contends that the letter was sent to more parties than strictly necessary, constituting its publication.
“Although he does not indicate specific defamatory statements in the letter, he argues they exist. Finally, he believes the Defendants had the intent to defame him as punishment for his failure to pay his debts.
“The Court is focused on the second element of defamation per se since the determination of an ‘actionable statement’ can resolve this matter. …
“When a court grants oyer over documents, ‘the court ruling on a demurrer may properly consider the facts alleged as amplified by any written agreement added to the record on the motion.’ …
“Therefore, the Deed of Trust, Assignment of Rents, Deed of Bargain and Sale, Title Insurance Commitment, and No Financing Affidavit are rightly absorbed into the ‘four corners’ of the Complaint and must be accepted as true for purpose of ruling on the Demurrer. …
“As the five above documents are now contained in the Complaint, it follows that the defamatory statement contained in the Royer Letter cannot be actionable because the Plaintiff failed to allege facts demonstrating how the alleged defamatory statement was false.
“The Plaintiff represented in the No Financing Agreement that he owned the Property free from liens. However, as made clear from the four other documents, both statements are inaccurate. Harrup Real Estate, not the Plaintiff, owns the Property and Blue Ridge Bank has a significant lien on the Property.
“Therefore, the Royer Letter’s claims that the Plaintiff made knowingly false representations in the No Financing Agreement are not defamatory, but rather substantiated by the supplementary documents.
“Having found that the statements in the Royer Letter are not actionable because the Plaintiff failed to allege facts that the statement was false, the Court need not address the remaining elements of defamation per se. The Demurrers on Count I are granted for Plaintiffs failure to state a defamation per se claim. …
“It is evident the Plaintiff did not demonstrate a claim for insulting words. In common parlance and with their ‘usual construction,’ none of the words in the Royer Letter would lead a rational person to violence, regardless of the truth or falsity of the accusations.
“The statute is not designed to protect against any and all allegations. Rather, it protects only those so heinous, loathsome, and provoking that unsafe situations could logically follow. …
“[T]he Court grants the Defendants’ Demurrers on Count II, insulting words.” Further, plaintiff is denied leave to amend the complaint because any amendment would be futile.
Harrup III v. Royer, et al., Record No. CL21-463, Aug. 1, 2022. Dinwiddie County Circuit Court (Teefey). VLW 022-8-056, 9 pp.
