Jordan v. Kollman

• Citation: 612 S.E.2d 203,269 Va. 569
• Decision Date: 22 April 2005
• Docket Number: Record No. 041885.,Record No. 041861.
• Parties: Claude E. JORDAN, Sr. v. J. Chris KOLLMAN, III J. Chris Kollman, III v. Claude E. Jordan, Sr.
• Court: Supreme Court of Virginia

Page 203

612 S.E.2d 203

269 Va. 569

Claude E. JORDAN, Sr. v. J. Chris KOLLMAN, III

J. Chris Kollman, III v. Claude E. Jordan, Sr.

Record No. 041885.

Record No. 041861.

Supreme Court of Virginia.

April 22, 2005.

James Broome Thorsen (Thorsen & Scher, on briefs), Richmond, for Claude E. Jordan, Sr.

Thomas E. Albro (R. Lee Livingston; Nathan J.D. Veldhuis; Tremblay & Smith, on brief), Charlottesville, for appellee in Record No. 041885.

Thomas E. Albro (R. Lee Livingston; Tremblay & Smith, on brief), Charlottesville, for appellant in Record No. 041861.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and COMPTON, S.J.

AGEE, Justice.

Claude E. Jordan, Sr., a resident of the City of Colonial Heights ("the City"), appeals from the judgment of the Chesterfield County Circuit Court which awarded compensatory and punitive damages against him for defamation of J. Chris Kollman, III, the City's former mayor. Kollman appeals the remittitur of the jury's award by the trial court. For the reasons set forth below, we will reverse the judgment of the trial court and enter final judgment on behalf of Jordan.

I. BACKGROUND AND PROCEEDINGS BELOW

Kollman, then the mayor and a member of the City Council of the City, was re-elected to the City Council in the May 7, 2002, municipal election. On May 5, 2002, the Sunday before the election, Jordan, a private citizen, composed and paid for the publication of two advertisements in The Progress Index, a newspaper of general circulation in the City (collectively "Jordan's ads"). The larger of Jordan's ads reads as follows:

ATTENTION: ALL 10,000 COLONIAL HEIGHTS VOTERS

Kollman/Hales/Farley voted to approve construction of over 200 apartments on Archer Avenue, mainly Federally subsidized, low income rentals ... certainly the worst Council action in our City's history... obviously the product of a lack of zoning vigilance ... Is it true that the city had the opportunity to purchase the land on which the project is located something [sic] ago? If so, why didn't Kollman/Hales/Farley and other council members purchase it and avoid all of these problems we now face and will continue to face forever more? ... Bet you haven't seen or heard a word on the apartments from the incumbent... perhaps waiting until after the election to really tell the people what to expect ... these apartments are for real... ALL Voters should go and see ... It's unbelievable that a massive housing project adjacent to a flood plain would be located in such a congested residential area ... Think of the potential for crime, drugs, and demands on our school system... think of the impact on all of us ... how much higher will reassessments go to pay the horrendous cost to the taxpayer... over $700,000 to widen Archer Avenue and untold costs for police, fire, and EMS services ... Think of the pain from noise, frustration and inconvenience when 300-500 vehicles are dumped twice daily onto presently quite [sic] residential streets like Carroll, Chesterfield, and Cambridge and onto already congested Boulevard and traffic arteries like Hamilton, Lynchburg, Westover, Temple, and E. Ellerslie ... we NEED 10,000 voters got go [sic] to the polls-rain or shine-to retire the incumbents who have held power for up to 20 years... VOTE (every vote counts) for the 3 challengers who have publicly stated NO MORE APARTMENT PROJECTS ... the next one could be near you. PLEASE Vote for BUREN, FREELAND, and WOOD ON MAY 7, 2002.

C.E. Jordan

Paid for by C.E. Jordan

("the large ad"). The other of Jordan's ads states:

Mr./Mrs. Colonial Heights:

Don't like over 200 mostly Federally subsidized, low-income apartments? Say Good-bye to those who approved the apartments... Support and Vote for the 3 challengers who have publicly said "NO MORE APARTMENT PROJECTS!"

VOTE BUREN, FREELAND AND WOOD ON TUESDAY, MAY 7, 2002

Paid for by C.E. Jordan

("the small ad").

Kollman narrowly won reelection to the City Council, coming in third among six candidates for the three seats up for election. John Wood and Milton Freeland, whom Jordan supported, came in first and second. In July 2002, the City Council elected Wood as mayor.¹

Prior to the City Council's mayoral vote, Kollman filed a motion for judgment on June 12, 2002, alleging that Jordan's ads in The Progress-Index defamed him. Kollman alleged that the large ad falsely stated that he "voted to approve ... over 200 ... mainly Federally subsidized, low income rentals." Kollman averred the small ad defamed him because it falsely implied he approved the apartment project as a member of City Council. He asserted that Jordan's ads were false because "he never approved [the apartments] and actively opposed their construction."

Kollman alleged that Jordan's statements were malicious and libelous per se. Kollman contended the ads caused him to suffer "[i]mpairment of reputation; [d]iminished standing in the community; [p]ersonal humiliation; [i]njury and embarrassment; [e]motional distress and mental anguish; and [p]rofessional harm." Kollman sought compensatory damages of $1.0 million and punitive damages of $350,000.

Jordan filed a demurrer, a motion for summary judgment at the close of Kollman's evidence and a motion to strike before the case was submitted to the jury. He contended, among other things, that the ad statements were not defamatory because they were protected by the First Amendment as discussion of issues of public concern, that the statements were of opinion, and were true or substantially true. Jordan also contended that if either of the ads were a false statement, its publication was not made with actual malice. Jordan's demurrer was overruled and his motions were denied; however, the trial court ruled before trial that Jordan's ads, if libelous, were not defamatory per se but could only be defamatory per quod.²

The jury returned its verdict for Kollman awarding compensatory damages of $75,000.00 and punitive damages of $125,000.00, plus pre-judgment interest of $4,990.26. In response to Jordan's motion for remittitur, the trial court, by a letter opinion of April 1, 2004, put Kollman on terms to accept reduced compensatory and punitive awards of $15,000 and $35,000, respectively. Kollman acceded to the remitted award and reserved his right to appeal pursuant to Code § 8.01-383.1. The trial court entered an order to that effect and both parties filed notices of appeal. We awarded an appeal to each party.

On appeal, Jordan assigns error to the trial court's: (1) overruling of his demurrer; (2) denial of his motion for summary judgment and subsequent motion to strike Kollman's evidence; (3) exclusion of all references to any actions the City Council took in relation to the Riverside Manor apartment development after the 2002 election; (4) exclusion of other paid political advertisements in The Progress-Index on May 5, 2002; (5) denial of Jordan's motion to set aside the jury's verdict or grant a new trial; and (6) failure, upon remittitur, to limit Kollman's recovery to nominal damages. Kollman assigns error to the remittitur of his jury award and the elimination of pre-judgment interest. He also alleges that the trial court erred in considering Jordan's net worth in its decision to remit the jury award.

II. STANDARD OF REVIEW

Historically, a cause of action for defamation has been viewed as the means to protect a basic right because "[t]he individual's right to personal security includes his uninterrupted entitlement to enjoyment of his reputation." The Gazette, Inc. v. Harris, 229 Va. 1, 7, 325 S.E.2d 713, 720 (1985) (citing Fuller v. Edwards, 180 Va. 191, 197, 22 S.E.2d 26, 29 (1942)). In a written format, defamation is usually termed libel while spoken defamation, not reduced to writing, is slander. See MacPherson v. Green, 197 Va. 27, 33, 87 S.E.2d 785, 789 (1955).

In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent. See generally The Gazette. To be actionable, the statement must be both false and defamatory. M. Rosenberg & Sons v. Craft, 182 Va. 512, 518, 29 S.E.2d 375, 378 (1944); Ewell v. Boutwell, 138 Va. 402, 415, 121 S.E. 912, 916 (1924). See also Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.1993). True statements do not support a cause of action for defamation. American Communications Network, Inc. v. Williams, 264 Va. 336, 337, 568 S.E.2d 683, 684 (2002). Further, statements of opinion are generally not actionable because such statements cannot be objectively characterized as true or false:

Thus, speech which does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a common law defamation action. Statements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion.

Fuste v. Riverside Healthcare Ass'n, Inc., 265 Va. 127, 132-33, 575 S.E.2d 858, 861 (2003) (citations and internal quotation marks omitted). Whether a statement is an actionable statement of fact or non-actionable opinion is a matter of law to be determined by the court. Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 101 (1985). We review such questions of law de novo. Turner v. Caplan, 268 Va. 122, 125, 596 S.E.2d 525, 527 (2004).

If a statement is not opinion, the plaintiff in a defamation action has the burden of proving that the statement is false. Williams v. Garraghty, 249 Va. 224, 235, 455 S.E.2d 209, 216 (1995). Further, "[s]light inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is `substantially' true." Saleeby v. Free Press, Inc., 197 Va. 761, 763, 91 S.E.2d 405, 407 (1956). A plaintiff may not rely on minor or irrelevant inaccuracies to state a claim for libel. See id. Whether a plaintiff has sufficiently proven the falsity of the alleged...