Tharpe v. Saunders

• Decision Date: 28 February 2013
• Docket Number: Record No. 120985.
• Citation: 737 S.E.2d 890
• Parties: Jeffrey W. THARPE, et al. v. J. Harman SAUNDERS, et al.
• Court: Virginia Supreme Court

737 S.E.2d 890

Jeffrey W. THARPE, et al.

v.J. Harman SAUNDERS, et al.

Record No. 120985.

Supreme Court of Virginia.

Feb. 28, 2013.

W. Huntington Byrnes (Clement & Wheatley, Danville, on brief), for appellants.

John A. Conrad (Abbigale B. Fredrick; The Conrad Firm, Richmond, on brief), for appellees.

Present: All the Justices.

OPINION BY Justice ELIZABETH A. McCLANAHAN.

In this defamation case, Jeffrey W. Tharpe (“Tharpe”) and Shearin Construction, Inc. (“Shearin”), appeal from the judgment of the circuit court sustaining the demurrer filed by J. Harman Saunders (“Saunders”) and J. Harman Saunders Construction, Inc. (“Saunders Construction”). Because we find the circuit court erred in ruling that the alleged defamatory statement constituted an expression of opinion, we will reverse the circuit court's judgment.

I. BACKGROUND

Since this case was decided below on demurrer, we accept as true the well-pleaded facts sets forth in the amended complaint and all inferences fairly drawn therefrom. Hawthorn v. City of Richmond, 253 Va. 283, 284–85, 484 S.E.2d 603, 604 (1997); Russo v. White, 241 Va. 23, 24, 400 S.E.2d 160, 161 (1991).

Shearin, acting through its agent, Tharpe, contracted with the United States government to perform excavation work at Fort Pickett. During the excavation, Shearin encountered rock and entered into a change order for compensation above the amount of the original contract price upon the basis that encountering the rock was a changed condition. Subsequently, Shearin, also acting through Tharpe, contracted with the Southside Regional Service Authority (the Authority) to perform excavation work at Butcher's Creek Landfill in Mecklenburg County. A dispute arose between Shearin and the Authority after Shearin encountered rock during the excavation and requested a change order for compensation above the original contract price.

Saunders, owner and operator of Saunders Construction, a business competitor of Shearin, allegedly made the following statement to Wayne Carter, the Mecklenburg County Administrator and the Authority's Executive Director: “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett.” This statement was allegedly made again by Saunders to Carter and another named individual, then repeated and republished by and to the Authority, people of the community, and the news media. Tharpe and Shearin assert that Tharpe never told Saunders “[he] was going to screw the Authority like he did Fort Pickett” and, therefore, such statement is false. They further assert that Saunders made the statement knowing it to be false, or in reckless disregard of whether it was false, because of personal spite, hatred, ill will, or a desire to hurt the business reputation of Tharpe and Shearin.

Tharpe and Shearin contend that the “clear meaning” of the statement as understood by the Authority, the community, and the general public “was that Tharpe, acting as agent for Shearin, intended to screw ¹ the Authority by making a[n] unjustified change order request as a result of encountering rock on the Authority Project” and “that Tharpe, acting as agent for Shearin, previously screwed the United States, who contracted for the Fort Pickett Project, by making an unjustified change order request as a result of encountering rock on the Fort Pickett Project.” Thus, Tharpe and Shearin contend that the words in the statement “in their normal usage” were understood by the Authority, the community, and the general public “to harm Tharpe's and Shearin's business reputation.”

It is further alleged that as a “direct and proximate cause” of the statement, the Authority filed suit alleging fraud against Tharpe and Shearin causing them to incur “significant attorneys' fees.” Additionally, Shearin has not been invited to “submit bids on several large construction projects,” “the business reputations of Tharpe and Shearin have been severely and permanently damaged,” and Tharpe and Shearin “have been and will continue to be financially harmed.”

In this present defamation suit filed by Tharpe and Shearin, Saunders and Saunders Construction demurred to the amended complaint on the ground that the statement allegedly made by Saunders did not contain a provably false statement, but was an expression of opinion.² The circuit court agreed, explaining that “[w]hether the quoted statement was made or not is certainly factual subject to being disproved,” but “the basis for the claim of defamation is not dependent upon that fact.” The circuit court reasoned that the claim of defamation is dependent on the ability to prove that Tharpe was going to “screw” the Authority and that Tharpe had “screwed” Fort Pickett. According to the circuit court, because what is meant by the word “screw” is dependent upon the speaker's viewpoint, the alleged defamatory statement was an expression of opinion.

II. ANALYSIS

On appeal, Tharpe and Shearin argue that the circuit court erred in holding that the alleged defamatory statement by Saunders that “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett” was an expression of opinion.

The elements of defamation are “(1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005). “To be actionable, the statement must be both false and defamatory.” Id. “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.” Yeagle v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136, 137 (1998).

The First Amendment to the Federal Constitution and article 1, section 12 of the Constitution of Virginia protect the right of the people to teach, preach, write, or speak any such opinion, however ill-founded, without inhibition by actions for libel and slander. “[E]rror of opinion may be tolerated where reason is left free to combat it.” Thomas Jefferson's First Inaugural Address (1801). “However pernicious an opinion may see[m], we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40 [94 S.Ct. 2997, 41 L.Ed.2d 789] (1974).

Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985). “But there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 340, 94 S.Ct. 2997.

Accordingly, “pure expressions of opinion” are constitutionally protected and “cannot form the basis of a defamation action.” Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d 209, 215 (1995). “Statements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion.” Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 132, 575 S.E.2d 858, 861 (2003). Furthermore, “[s]peech that does not contain a provably false factual connotation” is generally considered “ ‘pure expression[ ] of opinion.’ ” WJLA–TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (2002).³

“Whether an alleged defamatory statement is one of fact or of opinion is a question of law to be resolved by the trial court.” Id. at 156–57, 564 S.E.2d at 392;Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 714, 636 S.E.2d 447, 450 (2006); Fuste, 265 Va. at 132–33, 575 S.E.2d at 861. Because this determination is an issue of law, we conduct a de novo review of the statement in question. Raytheon, 273 Va. at 304, 641 S.E.2d at 91. In conducting our review, 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.

Applying these principles, Saunders' statement that “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett” is indisputably capable of being proven true or false. The statement can be disproved by evidence, if adduced, that Tharpe did not tell Saunders he “was going to screw the Authority like he did Fort Pickett.” It is neither an expression of Saunders' opinion that Tharpe made this statement to Saunders, nor is it dependent on Saunders' viewpoint. See, e.g., Tronfeld, 272 Va. at 715–16, 636 S.E.2d at 451.⁴ For that reason, the constitutional right to speak opinion “without inhibition by actions for libel and slander” is not implicated since it is Saunders' alleged false statement of fact, not any expression of his opinion, that subjects him to potential liability. Chaves, 230 Va. at 119, 335 S.E.2d at 102.

Although the circuit court recognized that “[w]hether the quoted statement was made or not is certainly factual subject to being disproved,” it nevertheless required that the statement attributed to Tharpe by Saunders also contain a provably false connotation. However, Tharpe's and Shearin's claims of defamation are based solely on the false attribution to Tharpe of the quoted statement, which he denies having spoken, not the falsity of the assertion contained within that alleged statement.

[R]egardless of the truth or falsity of the factual matters asserted within the quoted statement, [a false] attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (emphasis added).⁵ The gravamen of the amended complaint is that Saunders allegedly attributed a fabricated quotation to Tharpe that, as a quotation, caused injury to the reputations of Tharpe and Shearin. Such allegations give rise to a claim of defamation regardless of the truth or falsity of the matters asserted in the statement allegedly attributed to Tharpe or whether such assertions are fact or opinion. Id. at 511–12, 111 S.Ct. 2419 (where a public-figure psychoanalyst was falsely quoted...