Kollman v. Jordan , 269 Va. 569 ( 2005 )

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.
CLAUDE E. JORDAN, SR.
v. Record No. 041885
J. CHRIS KOLLMAN, III
OPINION BY
JUSTICE G. STEVEN AGEE
April 22, 2005
J. CHRIS KOLLMAN, III
v. Record No. 041861
CLAUDE E. JORDAN, SR.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Marc Jacobson, Judge Designate
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
2
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
1
In the City of Colonial Heights, the City Council elects
the mayor from its members after each general election. The
mayor is a voting member of City Council.
3
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
2
Kollman made no objection to the trial court's ruling on
this point and made no assignment of cross-error to it.
4
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.
5
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:
6
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 defamatory statements is a jury question. Thus,
on appeal, we determine only whether there is sufficient
7
evidence to support the jury's decision. A trial court's
judgment will not be set aside unless it is plainly wrong or
without evidence to support it. Code § 8.01-680.
The requisite intent a plaintiff must prove in a defamation
action depends upon the plaintiff's status as a public or
private figure and the damages sought. While it is within the
province of the states to "define . . . the appropriate standard
of liability for a publisher or broadcaster of defamatory
falsehood injurious to a private individual," public figure
plaintiffs are governed by the standard established in New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342, 347 (1974). In New York
Times Co., 376 U.S. at 279-80, the United States Supreme Court
ruled a public official is prohibited "from recovering [any]
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
'actual malice.' " The burden of proving "actual malice" is
upon the plaintiff who must demonstrate by clear and convincing
evidence that the defendant realized that his statement was
false or that he subjectively entertained serious doubt as to
the truth of his statement. Bose Corp. v. Consumers Union of
the United States, Inc., 466 U.S. 485, 511, n.30 (1984). To
recover punitive damages, all defamation plaintiffs must show
actual malice. Gertz, 418 U.S. at 349-50.
8
As mayor of the City and an incumbent candidate for City
Council, Kollman is a "public official" required to meet the New
York Times malice standard. Ocala Star-Banner Co. v. Damron,
401 U.S. 295, 299 (1971) ("As the mayor . . . the respondent
. . . was without question a 'public official' within the
meaning given the term in New York Times"). As a public
official, Kollman was required to prove actual malice in
Jordan's publication of the advertisements in order to recover
either compensatory or punitive damages for defamation.
In a defamation case, notwithstanding the jury's finding,
we must make an independent review of the record. The Gazette,
229 Va. at 19, 325 S.E.2d at 727. We must decide
whether the evidence in the record on appeal is
sufficient to support a finding of New York Times
"actual malice" by clear and convincing proof. . . .
[We] must examine the facts pertinent to the [jury]
award and exercise independent judgment to "determine
whether the record establishes actual malice with
convincing clarity."
Id., 325 S.E.2d at 727-28 (citations omitted). In the course of
our independent review, we review the facts in the light most
favorable to Kollman, the prevailing party below. Caplan v.
Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002).
III. ANALYSIS
The parties' dispute centers around Kollman's actions as
mayor and a member of City Council in relation to the
development of certain real property. In June 2000, RV Limited
9
Partnership ("RV"), a real estate developer, submitted a site
plan to the Colonial Heights Planning Commission for the
construction of the Riverview Apartments ("Riverview") on Archer
Avenue in the City. The property was zoned for residential
multi-family dwellings and had been so zoned since 1968. RV
proposed to build an 88-unit apartment building for federally
subsidized, low-income tenants.
Kollman and other members of City Council opposed Riverview
because the site was in a flood plain and would require major
expenditures by the City to widen Archer Avenue and to improve
utility services. The City would also likely incur costs for
increased police and fire protection, as well as greater public
school expenses.
On December 5, 2000, Kollman, as mayor, wrote a letter to
the Virginia Housing Development Authority ("VHDA"), expressing
his concerns about Riverview: that the building site was in a
floodplain, that the site may encroach on area wetlands, that
the property was the site of an Indian burial ground, and that
the City had no public transportation system to serve the needs
of Riverview residents. Kollman testified at trial that he
opposed the construction of Riverview because of these concerns,
but that he knew that raising these issues could not stop, but
only delay the project.
10
On December 12, 2000, City Council unanimously adopted and
Kollman signed Resolution 00-49 to "clearly [express] the city's
opposition to [the] proposed Riverview Apartments on Archer
Avenue," which was transmitted to VHDA. Kollman arranged a
meeting with the Federal Emergency Management Agency, to
determine whether RV could legally build on the Riverview site.
Kollman also sought the advice of the City Attorney, F. McCoy
Little, to determine what further action the City Council could
take against Riverview. Specifically, Kollman asked Little if
the City Council could pass a moratorium on apartment
construction. Little told Kollman that City Council did not
have that authority.
Ralph M. Goldstein, RV's attorney, approached Little in
2001, to discuss the possible sale of the Riverview property to
the City. At a meeting with Little and Kollman, Goldstein
conveyed RV's offer to sell the property for a price of $1.0
million. Because Kollman did not have authority to accept RV's
offer on behalf of the City, he called a meeting of City Council
for a closed session to be held June 12, 2001.
At the City Council meeting in closed session, Goldstein
presented a document detailing RV's expenditure of $682,530.07
in costs to develop the Riverview site and conveyed the offer to
sell the property to the City for $1.0 million. At the meeting,
Kollman and the other City Council members understood that if
11
the City failed to purchase the property, RV would commence
construction of Riverview on June 30, 2001.
While Code § 2.2-3711(B) prohibits a governing body, like
the City Council, from taking a binding vote in a closed
session, Kollman and the other attendees testified that the
Council took a poll and reached a "consensus" to make an offer
on the Riverview property. Subsequently, City Council
authorized Little to offer RV $500,000 plus refunds of fees paid
to the City in connection with the development of the property.
Little made the offer to Goldstein on June 14, 2001. On
June 26, 2001, the City received Goldstein's letter on behalf of
RV, rejecting the offer. The City Council made no further offer
or any other effort to purchase the Riverview property.
On March 1, 2002, The Progress-Index carried an article
featuring the Riverview construction project ("March 1st
article"). Kollman was interviewed for the article and noted
the City's opposition to the project in Resolution 00-49. The
March 1st article also contained the following account of the
City's failed bid to purchase the property from RV:
At one point in the negotiations between [RV] and
the city, Kollman told The Progress-Index that . . .
[RV] offered to sell their 7.377 acres to the city for
$1 million—a site that was assessed in 2000 at
$60,300, according to city assessor Ken Stickler.
"They'd done some work at that point," Kollman
related, "and paid some permit fees." City Council,
in closed session, made a counter offer of a half –
million dollars, Kollman told The Progress-Index,
12
which [RV] did not accept. No further negotiations
were attempted by either party.
Kollman was quoted as to the number of units under construction
at the time: "over 80 being built now at Riverview."
The March 1st article also mentioned another parcel of land
located next to Riverview on Archer Avenue. It was reported
that in 1996, the owner of that property had been denied
financing from the Department of Housing and Urban Development
to develop low-income housing apartments called Riverview Manor.
However, the March 1st article went on to state that
[the owner's] plans now call for 119 units. He
described his plan as "90 percent approved," provided
he redo the site plans, meet all necessary criteria,
and obtain financing. His preliminary site plans were
approved by the [City] Planning Commission in 1996.
"We've just been holding off until they do
something with that road," [the owner] said of Archer
Avenue.
Upon this factual milieu, we can proceed directly to
Jordan's claim that Kollman's defamation action must fail
because of the lack of proof of actual malice. Based upon our
independent review of the record, we agree with Jordan.
In Harte-Hanks Communications, Inc. v. Connaughton, 491
U.S. 657, 688 (1989), the United States Supreme Court noted that
reckless disregard for the truth . . . requires more
than a departure from reasonably prudent conduct.
There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication
. . . . [and] that the defendant actually had a high
degree of awareness of probable falsity.
13
(Citations and internal quotation marks omitted.) Shenandoah
Publ'g House, Inc. v. Gunter, 245 Va. 320, 324, 427 S.E.2d 370,
372 (1993) (adopting the "high degree of awareness" test for
reckless disregard for the truth). Based on the March 1st
article, Jordan believed his advertisements represented the
facts of the situation regarding the June 12, 2001, City Council
action. At trial, he testified that he believed that the ads
were true at the time of writing and that he "stand[s] by those
ads today." Jordan argues that because he believed his ads were
true, there is insufficient evidence to establish that he acted
with actual malice.
Kollman contends, however, that under St. Amant v.
Thompson, 390 U.S. 727, 732 (1968), Jordan's subjective belief
that his statements were true is not sufficient to preclude the
jury's finding of actual malice. In St. Amant, the United
States Supreme Court cautioned that
[t]he defendant in a defamation action brought by a
public official cannot, however, automatically insure
a favorable verdict by testifying that he published
with a belief that the statements were true. The
finder of fact must determine whether the publication
was indeed made in good faith. Professions of good
faith will be unlikely to prove persuasive, for
example, where a story is fabricated by the defendant,
is the product of his imagination, or is based wholly
on an unverified anonymous telephone call. . . .
Likewise, recklessness may be found where there are
obvious reasons to doubt the veracity of the informant
or the accuracy of his reports.
14
Id.
The record provides no clear and convincing evidence that
Jordan's ads were "fabricated" by him or a "product of his
imagination." Rather Jordan testified that he relied on public
information as reported in the March 1st article for the content
of his ads:
I took the information that I knew that had happened
in closed session . . . and I knew from reading [the
March 1st article] that [the apartments] were
federally subsidized low income rentals. . . . I knew
there were 88 [units] in the Riverview [apartments]
and I had heard . . . there were going to be a hundred
or more built on the adjacent property, so I just used
[200] as a figure.
There was no clear and convincing proof that there were "obvious
reasons to doubt the veracity of the [March 1st article]." St.
Amant, 390 U.S. at 732.
In The Gazette, 229 Va. at 50, 325 S.E.2d at 746, this
Court affirmed a jury verdict in favor of a defamation plaintiff
upon proof of actual malice because "[the defendant] abandoned
all judgment and reason in composing and publishing the
advertisement. [He had no] objective basis for the charge. . . .
[and] no proper grounds [for his statement]."
By contrast, the March 1st article shows that Jordan had an
objective basis to charge that Kollman voted to approve
Riverview and a legitimate reason to contend Kollman's actions
led to Riverview's development. Jordan was a concerned citizen
15
who believed in good faith that City Council had made an ill-
advised decision which effectively allowed Riverview's
construction. We cannot find that there was clear and
convincing evidence which would permit the jury to find Jordan
acted with actual malice merely because he failed to comprehend
the intricacies of City Council voting procedure.
Thus Jordan's assertion that his ads were substantially
true is more than a subjective belief—it is an honest conviction
grounded in good faith. Because there is not sufficient
evidence that Jordan published the advertisements with reckless
disregard for the truth, the record does not support a finding
that Jordan acted with actual malice. Without a showing of
actual malice, Kollman's defamation claim must fail.
IV. CONCLUSION
There is insufficient evidence in the record to support a
finding under the clear and convincing proof standard that
Jordan's ads in The Progress Index, which Kollman claimed as
defamatory, were published with actual malice. Thus, the trial
court erred in denying Jordan's motion to strike the evidence
and to set aside the jury's verdict. Therefore, the judgment of
the trial court will be reversed and final judgment will be
entered for Jordan. 3
3
Because we reverse the trial court's judgment in
favor of Kollman, we do not reach any of the issues in
16
Reversed and final judgment.
Kollman's appeal or any of Jordan's other assignments of
error.
17