Virginia Lawyers Weekly//February 26, 2023
Virginia Lawyers Weekly//February 26, 2023//
Where a residential owners association president claimed other owners defamed him in a letter, the complained-of statements lack the necessary “sting” to be considered defamatory.
Narrowing the issue
“We exercise de novo review of the circuit court’s decision sustaining the defendants’ demurrers. … The circuit court said that it sustained those demurrers on every ground raised by each of the five defendants.
“The defendants’ arguments, however, were not all the same. For instance, only four defendants argued that the defamation claims were deficient for failing to plead the exact words used; Baldwin did not join in that argument.
“Only two defendants (James and Weiler) argued that the complaint was deficient for failing to plead New York Times malice. Only one defendant (Weiler) joined in the arguments of other demurrants (James and Wisler).
“We have an ‘obligation to decide cases on the best and narrowest grounds available.’ … Given the large number of issues presented here, we look for the best and fewest grounds on which to resolve this appeal.
“Our selection of which issues to address is constrained by a long-standing feature of Virginia demurrer practice: we may affirm an order sustaining a demurrer only on a ground that the defendant raised in the trial court. …
“[W]e have determined that the best-and-narrowest ground here is that the statements about which Theologis complains were not defamatory. All five defendants raised that argument on demurrer.
“Because we agree that the statements lacked sufficient ‘sting’ to be actionable, we find that the trial court properly dismissed the defamation claims, together with the business-conspiracy claim that depended on defamation as the predicate tort.”
“Not all false and disparaging statements about a person are defamatory. ‘A statement must contain the requisite defamatory sting to be actionable.’ …
“To have the requisite sting requires language that ‘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.’ …
“By contrast, ‘language that is insulting, offensive, or otherwise inappropriate, but constitutes no more than “rhetorical hyperbole”’ is not defamatory.’ …
“The Supreme Court held in Schaecher [v. Bouffault, 290 Va. 83, (2015)] that accusing someone of violating an ordinance or breaching an easement, covenant, or contract generally does not carry sufficient sting to be actionable as defamation.”
“The same is true of the alleged defamatory statements here, almost all of which allege that Theologis failed to properly apply or follow various provisions of the Fieldstone Townhome Association’s ‘Governing Documents.’
“At oral argument, we asked Theologis to list the five most defamatory statements of the 26 itemized in the complaint. He identified the following – all from the July 2020 letter – alleging that he violated or failed to apply the association’s ‘Covenants’ and ‘By-Laws’:
“‘[Theologis] has made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws. Examples are …
“‘… absurdly stringent yet disparately applied enforcement of “violations” as seen through his adversarial view.
“‘[Theologis] “at times exclud[ed] [fellow board members] from board decision-making altogether, thereby usurping the authority granted to the Board as a whole via the Covenants & By-Laws.
“‘Stating that Theologis “[s]cheduled a special board meeting using dubious circumvention of proper guidelines for doing so as outlined in the Covenants & By-Laws.”’ …
“We will assume for argument’s sake that these were false statements of fact, rather than non-actionable expressions of opinion. … Even so, it is ‘not apparent on the face of the document how this violation would render the plaintiff odious, infamous, or ridiculous, or otherwise subject [him] to contempt, shame, scorn, or disgrace.’ …
“Fieldstone’s governing documents, like the covenant restrictions in Schaecher, are ‘contractual in nature.’ … So like Schaecher’s alleged violation of covenants and easements, Theologis’s alleged misapplication of the association’s governing documents is not inherently defamatory and does not stigmatize him as a ‘law breaker.’”
Context weakens case
“As with all evaluations of defamatory statements, … context is of the utmost importance,’ … but the context here only weakens Theologis’s claim. Theologis had assumed a leadership position as president of the homeowners’ association.
“The defendants’ statements were criticisms of his performance in that role before a meeting at which association members would vote whether to remove him from the board. Statements tailored to whether Theologis properly followed the association’s governing documents were germane to that purpose.
“The ‘context’ thus fails to transmute those statements into something sufficiently sinister or odious to be actionable as defamation. While Theologis may have found his fellow members’ criticisms of his management style ‘insulting, offensive, or otherwise inappropriate,’ the statements were not so inflammatory as to disgrace him ‘in the common estimation of mankind.’”
“While the defendants’ statements criticize Theologis’s performance as an association officer and director, they do not impugn his integrity as a lawyer or private-property manager, let alone mention those occupations.
“Theologis failed to plead facts showing that the defendants’ statements would be recognized by readers as an attack on his law practice or his property-management business. Because ‘innuendo may not extend beyond the meaning of the words in the statement,’ … the complaint’s allegations about Theologis’s other jobs fail to make actionable the defendants’ statements about his leadership in the association.”
“Count III of Theologis’s complaint seeks treble damages and attorney fees against all five defendants under Code §§ 18.2-499 and 18.2-500. He claims that their conduct violated the business-conspiracy statute because the defendants ‘willfully and maliciously [injured him] in his reputation, trade, business or profession.’ … All five defendants demurred to Count III[.] …
“Assuming without deciding that a statutory business-conspiracy claim could piggyback on the defamation claims made here, the circuit court did not err in dismissing the conspiracy claim.
“Because Theologis failed to state a claim for defamation, he necessarily failed to state a claim for business conspiracy, as his conspiracy claim hinged on defamation as the predicate tort.”
Theologis v. Weiler, et al., Record No. 0133-22-4, Feb. 14, 2023. CAV (published opinion) (Raphael). From the Circuit Court of Frederick County (Madden). Nicholas Hantzes for appellant. William L. Mitchell for appellees Patricia James, Daria Collins, Khia Wisler and Janis Baldwin. No brief or argument for appellee Mark Weiler. VLW 023-7-078, 14 pp.