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Schaecher v. Bouffault

Supreme Court of Virginia

June 4, 2015


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[Copyrighted Material Omitted]

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Gina L. Schaecher (Kasimer, Pierce & Schaecher, on briefs), for appellants.

Julia B. Judkins (Maureen E. Cummins; Bancroft, McGavin, Horvath & Judkins, on brief), for appellee.



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PRESENT: All the Justices

In this appeal we consider (1) whether any of nine statements by the defendant are sufficiently defamatory in nature to survive demurrer, and (2) whether the allegations state a claim for tortious interference with contract.


This appeal arises from circumstances surrounding a special use permit application regarding a prospective property for 3 Dog Farm, LC, a company that provides rehabilitation services to displaced companion canines. Plaintiff Gina Schaecher owns both 3 Dog Farm and plaintiff Happy Tails Development, LLC (" Happy Tails" ), the contract purchaser of the Clarke County property on which Schaecher intended to locate 3 Dog Farm. In accordance with Clarke County Zoning Ordinances, Happy Tails applied for a special use permit on August 6, 2013, requesting a permit to operate a boarding kennel of more than five canine animals.

Plaintiffs allege that defendant Robina R. Bouffault, a nearby neighbor and member of the Clarke County Planning Commission (" Planning Commission" ), sent defamatory emails and made false public statements defaming Schaecher and Happy Tails. The allegations include two counts of defamation, one on behalf of Schaecher and one on behalf

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of Happy Tails, and one count of tortious interference with contractual relations on behalf of Happy Tails.[1]

The circuit court sustained Bouffault's initial demurrer, granting plaintiffs leave to amend. The amended complaint includes nine alleged defamatory statements. Eight of these statements were sent in email form to some or all members of the Planning Commission and other interested parties, and are attached as exhibits to the amended complaint.[2] One of the alleged defamatory statements was made to a local newspaper, The Winchester Star, and is not attached as an exhibit.

Five of the emails and The Winchester Star comments concern whether the kennel as proposed would comply with conservation easements, private covenants, or county ordinances. Plaintiffs allege that these statements characterize Schaecher as a lawbreaker, one without integrity, or one with disregard for the law, or imply that Happy Tails was in violation of the law, and that defendant made these statements with the intent to defame Schaecher and Happy Tails. Two additional emails state that " It would appear that Mrs. Schaecher was not totally truthful," and " I firmly believe that Gina is lying and manipulating facts," respectively. Plaintiffs allege that these statements impugn Schaecher's honesty and harm the reputation of Happy Tails. Finally, one email includes a remark by Bouffault regarding Schaecher's sister Mary, who was to serve as the resident manager at the kennel. The email states that " Mary had owned a property . . . with her boyfriend -- they have now split . . . but [she] appears to be having difficulties in paying the mortgage . . . foreclosure could be a possibility." Plaintiffs allege that the statement defamed Schaecher and Happy Tails. The individual statements are discussed in more detail in Part II.A., infra.

Happy Tails also alleges that because of " false, reckless, defamatory and/or misleading statements to the press, Clarke County government officials, the planning commission and members of the Board of Supervisors," Happy Tails incurred additional costs due to delay in review of the special use permit and in order to refute and remedy Bouffault's statements. Additionally, " [u]pon information and belief, [defendant] engage[ed] third parties to threaten and harass persons who openly supported [Happy Tails'] proposed use for the Property causing the Sellers' reservations in continuing [Happy Tails'] Sales Contract." Happy Tails pled that Bouffault's conduct delayed and increased costs such that the Sales Contract became cost prohibitive and Happy Tails was forced to terminate. An attached exhibit reflected a signed Sales Contract that indicated settlement on the sale of the property was to occur on May 30, 2014, one day after the amended complaint was filed. Nothing in the attached exhibit indicated that the contract had been terminated.

Bouffault again demurred to the amended complaint. The circuit court ruled that the statements were not defamatory; that the statements and actions complained of were " committed incident to the performance of a legislative function of the Defendant as a member of the Clarke County Planning Commission; therefore, they are protected by legislative immunity" ; and that the allegations did not set forth a claim for tortious interference with contract. The circuit court therefore sustained the demurrer on all counts. We granted this appeal.


We review the circuit court's ruling on a demurrer de novo. Schilling v. Schilling, 280 Va. 146, 148, 695 S.E.2d 181, 183 (2010). " A demurrer accepts as true all facts properly pled, as well as reasonable inferences

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from those facts." Steward v. Holland Family Props., LLC, 284 Va. 282, 286, 726 S.E.2d 251, 253 (2012).

A. Defamation

Virginia makes no distinction between actions for libel and slander. Shupe v. Rose's Stores, Inc., 213 Va. 374, 375-76, 192 S.E.2d 766, 767 (1972). In Virginia, when a plaintiff alleges defamation by publication, the elements are " (1) publication of (2) an actionable statement with (3) the requisite intent." Tharpe v. Saunders, 285 Va. 476, 480, 737 S.E.2d 890, 892 (2013) (internal quotation marks omitted). In the present case the elements of publication and intent are sufficiently pled on the face of the pleading. This appeal focuses on whether the statements pled are actionable.

An " actionable" statement is both false and defamatory. Id. at 481, 737 S.E.2d at 892. Defamatory words are those " tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559; see Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993)(applying Virginia law). A false statement must have the requisite defamatory " sting" to one's reputation. See Air Wis. Airlines Corp. v. Hoeper, U.S. , , 134 S.Ct. 852, 866, 187 L.Ed.2d 744 (2014) (focusing on " the substance, the gist, the sting" of an allegedly defamatory statement); Curtis Pub. Co. v. Butts, 388 U.S. 130, 138, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)(referring to the defamatory implication as the " sting of the libel" ).

Characterizing the level of harm to one's reputation required for defamatory " sting," we have stated that defamatory language " 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." Moss v. Harwood, 102 Va. 386, 392, 46 S.E. 385 (1904); see Adams v. Lawson, 58 Va. (17 Gratt.) 250, 255-56 (1867) (" It is sufficient if the language tends to injure the reputation of the party, to throw contumely, or to reflect shame and disgrace upon him, or to hold him up as an object of scorn, ridicule or contempt." ); see also Moseley v. Moss, 47 Va. (6 Gratt.) 534, 538 (1850) (actionable defamation " tend[s] to make the party subject to disgrace, ridicule, or contempt" ). Each of these descriptions connotes the requisite defamatory " sting," while " language that is insulting, offensive, or otherwise inappropriate, but constitutes no more than 'rhetorical hyperbole'" is not defamatory. Yeagle v. Collegiate Times, 255 Va. 293, 296, 497 S.E.2d 136, 137 (1998).

We recently had occasion to restate the historical elements of a common law defamation pleading:

A common law complaint for libel or slander historically included three elements: the inducement, an explanation of the facts demonstrating that the allegedly defamatory statement is actionable; the colloquium, an explanation of how the allegedly defamatory statement refers to the plaintiff, if he is not explicitly named; and the innuendo, an explanation of the allegedly defamatory meaning of the statement, if it is not apparent on its face.

Webb v. Virginian-Pilot Media Cos., 287 Va. 84, 88, 752 S.E.2d 808, 811 (2014) (citing Black's Law Dictionary 300, 845, 861 (9th ed. 2009)). In the case at bar, the question before the Court is whether the statements are either defamatory on their face or contain sufficient innuendo to imply defamatory meaning; we must also consider whether the statements constitute protected First Amendment speech.

In evaluating whether language is actionable, we take all inferences in favor of the plaintiff, but such inferences cannot rise above the language of the documents or statements themselves:

In determining whether the words and statements complained of . . . are reasonably capable of the meaning ascribed to them by innuendo, every fair inference that may be drawn from the pleadings must be resolved in the plaintiff's favor. However, the meaning of the alleged defamatory language can not, by innuendo,

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be extended beyond its ordinary and common acceptation. The province of the innuendo is to show how the words used are defamatory, and how they relate to the plaintiff, but it can not introduce new matter, nor extend the meaning of the words used, or make that certain which is in fact uncertain.

Id. at 89-90, 752 S.E.2d at 811 (quoting Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 8, 82 ...

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