MICHAEL N. HANDBERG
FELICIA GOLDBERG, ET AL.
THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
ELIZABETH A. McCLANAHAN, JUDGE
N. Handberg appeals a decision of the trial court upholding a
jury verdict finding him liable for defamation of Dr. Felicia
Goldberg. We agree with Handberg that the trial court erred
in its gatekeeping function by failing to properly instruct
the jury as to actionable statements of fact versus
statements that were merely opinion and thus nonactionable.
We reverse and remand.
retained Dr. Goldberg to provide educational advocacy
services for his son who attended Loudoun County Public
Schools ("LCPS"). The Morgan Center, an
organization established by Dr. Goldberg, supplemented Dr.
Goldberg's services with testing services. Handberg
provided his debit card information to the Morgan Center for
billing. Upon each request for payment, Handberg would grant
permission for The Morgan Center to charge his debit card for
services provided. Billing disagreements subsequently arose,
however, between Handberg, Dr. Goldberg, and the Morgan
Center. This resulted in Handberg sending an email on June 2,
2015 to Dr. Goldberg and educational professionals at his
son's school informing them that Dr. Goldberg no longer
represented his son, stating he was terminating Dr. Goldberg
for fraudulent billing, and criticizing the billing practices
of Dr. Goldberg and the Morgan Center as unethical.
Goldberg filed a defamation action based on Handberg's
email. Of the thirty-four statements contained in the email,
Dr. Goldberg quoted the following eleven statements in her
first amended complaint as allegedly defamatory:
1. "That he terminated Plaintiff's services for
2. "That 'since [Plaintiff] was able to secure
reimbursement for LCPS [Plaintiff] thought she had a blank
check to just start dumping hours on my credit card for
services not provided;'"
3. "That Plaintiff would not speak with him 'unless
[he] paid her more money;'"
4. "That Plaintiff 'stated it was not my money as
LCPS would pay for it, so [Plaintiff] did not understand why
5. "That 'the motivation of the Morgan Center was
focused on maximizing their billing and not on the best
interests of the children they are advocating;'"
6. "That Plaintiff's 'view was that since it was
not my money (LCPS) that was paying for their services, I
should just go along with excess billing. That is a value
system that I don't endorse, or approve;'"
7. "That Defendant 'did not want LCPS to reimburse
someone through me for services that were not authorized or
8. "That Defendant 'did not think that [he] could
trust the motives of a person that was so opportunistic and
aggressive about pursuing money and was not a person that I
could trust in advocating services for my son;'"
9. "That 'given the change in behavior [he] saw on
this case, [he] would not recommend that LCPS agree to
reimburse advocacy services in the future, given the
advocate's role in the negotiation and their conflict of
10."That 'in the case of the Morgan Center and Dr.
Goldberg, they could not resist the temptation to cash in on
what they perceive as a windfall;'" and
11."That 'I don't think this is in the students
[sic] interest or LCPS interest.'"
demurred to the first amended complaint, arguing that the
statements could not sustain a defamation claim. The trial
court denied Handberg's demurrer in part and sustained it
in part. The court found that the first eight statements
recited above-numbered 1 through 8 (hereinafter the
"first eight statements")-were actionable
statements of fact, but that the last three
statements-numbered 9 through 11 (hereinafter ...