The Virginia Defamation Law Blog
As a plaintiff in a defamation action, you’ll usually want to frame your claim as one involving defamation per se, a classification that would obviate the need to prove the specifc amount of damages you suffered that were directly attributable to being defamed. The Virginia Supreme Court has held that false accusations may be considered defamatory per se if they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (See Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). Notice that the Virginia Supreme Court did not hold that all false accusations of criminal conduct are considered defamatory per se. Only crimes involving moral turpitude qualify for the heightened level of defamation. A crime involving moral turpitude is one that involves an element of baseness, vileness, or depravity in private or social duties. Crimes that lack an inherent element of dishonesty, deceit, or moral depravity include things like traffic offenses, technical tax offenses, HOA violations, and regulatory infractions. The Virginia Court of Appeals recently affirmed a trial judge’s decision to strike a $300,000 plaintiff’s verdict for defamation per se on the ground that the defamation at issue was not really of the “per se” variety.
Let’s take a look at the case of Stephanie Ann Wadnola v. City of Norfolk. Ms. Wadnola filed a defamation claim against the City of Norfolk after Assistant City Attorney Katherine Taylor told Wadnola’s business associates that Wadnola “had been operating her business illegally.” Wadnola had opened Jhane’s Sweet Lounge at 731 Granby Street in April 2017, operating it through her solely-owned corporation, Jhanesis, LLC. In December 2019, Wadnola sold the business to Suite 1200, LLC, and the premises were leased to Suite 1200 starting February 2020. Although Wadnola’s conditional use permit allowed temporary operation by a successor, Suite 1200 never obtained its own permit. The City revoked Wadnola’s conditional use permit for failing to update the manager’s list as required by city ordinance and Suite 1200 ceased operations shortly thereafter. At a court hearing relating to the violation, Taylor allegedly remarked to the new business owners, privately, that Wadnola “had been operating illegally.”
Wadnola sued for defamation, as well as tortious interference and business conspiracy. She claimed the statement about her was defamatory per se because it imputed to her the commission of a criminal offense involving moral turpitude and because it prejudiced her in her profession or trade. At trial, the jury found in Wadnola’s favor and awarded her $300,000. The trial court set aside this verdict, however, concluding the statement was not defamatory per se and the plaintiff had not pled defamation per quod.
The court ruled specifically that violating a conditional use permit did not constitute a crime involving moral turpitude. The court also found that the statement did not prejudice Wadnola in her trade or profession, since she was no longer actively engaged in the restaurant business. Additionally, because Wadnola did not specifically plead defamation per quod or adequately plead special damages, the trial court found that the
jury’s verdict could not stand and dismissed the case with prejudice.
The Virginia Court of Appeals affirmed. It held that the crime imputed by the statement “Wadnola had been operating illegally” was that Wadnola had violated her conditional use permit, which is not a crime of moral turpitude. It also held that because Wadnola did not operate any business or restaurant after selling her company in 2019, Taylor’s statement did not prejudice her in her trade or profession. The court explained (relying on Prosser and Keeton on The Law of Torts) that while there is no absolute rule that a person must be actively engaged in a specific profession or trade at the time of a defamatory statement, “it must appear that he held or was engaged in it, or at least about to be so engaged, when the words complained of were published.” The statement at issue might have prejudiced a restauranteur, but Wadnola was not engaged as such (nor about to be so engaged) at the time the “operating illegally” statement was made.
The court of appeals also affirmed the trial court’s decision to set aside the verdict rather than allow Wadnola to pursue a theory of defamation per quod. Even if the statement at issue might have qualified as defamation per quod, Wadnola’s attorneys did not pursue such a theory, and you can’t win damages for something you didn’t ask for. (See Jenkins v. Bay House Assocs., L.P., 266 Va. 39, 43 (2003) (holding that “[a] litigant’s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings.”). The court noted that the jury was instructed based on a defamation per quod theory without objection by the City, but held that the trial court is not bound by the instructions given and was correct to set the judgment aside when the jury instructions were defective.
And because this resulted in a final decision in favor of the City of Norfolk, the court did not address the City’s argument that it was also entitled to sovereign immunity.