PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.
JAY TRONFELD
OPINION BY
v. Record No. 052635 JUSTICE G. STEVEN AGEE
November 3, 2006
NATIONWIDE MUTUAL INSURANCE
COMPANY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Pamela S. Baskervill, Judge
Jay Tronfeld appeals from the judgment of the Circuit Court
of the City of Petersburg sustaining a demurrer on behalf of the
defendants, Nationwide Mutual Insurance Company (“Nationwide”)
and Todd Schmitt (collectively, the “Defendants”). On appeal,
Tronfeld asserts the trial court erred in finding that the
alleged statements were opinion and thus not actionable under
Virginia law as defamation per se. For the reasons set forth
below, we will reverse the judgment of the trial court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Nationwide employed Schmitt as an insurance adjuster. In
February 2005, Schmitt, acting within the scope of his
employment with Nationwide, met with Donald Spellman to discuss
an injury that Spellman sustained from an accident with an
insured of Nationwide. During this meeting, Schmitt and
Spellman discussed settlement of the personal injury claim and
whether the settlement could be completed without the
intervention of an attorney.
During the meeting, they discussed the possible selection
of an attorney to serve as counsel for Spellman in his claim
against Nationwide. In response to Spellman selecting Tronfeld
as his counsel, Schmitt made these statements (“Schmitt’s
statements”):
(1) That Jay Tronfeld just takes peoples’ money.
(2) That clients of Jay Tronfeld would receive more
money [for their claims] if they had not hired
Jay and had dealt with the adjuster [directly]. 1
At the time of the alleged statements, Tronfeld actively
engaged in the practice of law and operated the law firm Jay
Tronfeld & Associates. Tronfeld’s law practice primarily
involved the representation of private individuals in personal
injury matters, and his firm used extensive marketing through
print, radio and television to attract clients.
Tronfeld filed an amended motion for judgment in the
Circuit Court of the City of Petersburg, alleging that the
statements made by Schmitt were defamation per se because the
statements impute “Tronfeld as unfit to perform the duties of
his employment” and that he “lacks integrity and is dishonest in
performing the duties of his employment.” As a consequence,
Tronfeld alleges he was prejudiced “in his work and chosen
1
Tronfeld concedes on appeal that a third statement by
Schmitt, “that Jay Tronfeld was no good,” is a statement of
opinion and thus not actionable in a cause of action for
defamation. Therefore, this statement is not at issue in this
appeal and we do not consider it.
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profession” as an attorney. The Defendants filed a demurrer,
contending Schmitt’s statements were expressions of opinion and
therefore could not be the basis for a cause of action for
defamation.
In a hearing on the demurrer, the trial court ruled from
the bench that Schmitt’s statements were “expressions of
opinion” and that the demurrer should be sustained. On November
15, 2005, the trial court entered a final order sustaining the
demurrer. We awarded Tronfeld this appeal.
II. ANALYSIS
The purpose of a demurrer is to determine whether a motion
for judgment states a cause of action upon which the requested
relief may be granted. Welding, Inc. v. Bland County Service
Authority, 261 Va. 218, 226, 541 S.E.2d 909, 913 (2001). “A
demurrer admits the truth of all properly pleaded material
facts. ‘All reasonable factual inferences fairly and justly
drawn from the facts alleged must be considered in aid of the
pleading.’ ” Ward's Equipment, Inc. v. New Holland N. America,
Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997) (quoting Fox
v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).
A demurrer does not admit the correctness of the
conclusions of law found in the challenged pleading. Ward’s
Equipment, Inc., 254 Va. at 382, 493 S.E.2d at 518. On appeal,
a plaintiff attacking a trial court's judgment sustaining a
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demurrer need show only that the court erred, not that the
plaintiff would have prevailed on the merits of the case.
Thompson v. Skate America, Inc., 261 Va. 121, 128, 540 S.E.2d
123, 127 (2001).
Historically, a cause of action for defamation has been
viewed as the means to protect a basic right because “the
individual's right to personal security includes his
uninterrupted entitlement to enjoyment of his reputation.”
Jordan v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005)
(quoting The Gazette, Inc. v. Harris, 229 Va. 1, 7, 325 S.E.2d
713, 720 (1985)). At common law, defamatory words that are
actionable per se are:
(1) Those which 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.
(2) Those which impute that a person is infected with
some contagious disease, where if the charge is true,
it would exclude the party from society.
(3) Those which impute to a person unfitness to
perform the duties of an office or employment of
profit, or want of integrity in the discharge of the
duties of such an office or employment.
(4) Those which prejudice such person in his or her
profession or trade.
Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981);
see also Great Coastal Express, Inc. v. Ellington, 230 Va. 142,
146-47, 334 S.E.2d 846, 849 (1985) (setting out the common law
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standard for defamation per se); Shupe v. Rose's Stores, Inc.,
213 Va. 374, 376, 192 S.E.2d 766, 767 (1972) (identifying words
at common law which are actionable per se). A person maligned
by defamation per se may recover compensatory damages for injury
to reputation, humiliation, and embarrassment without
demonstrating any financial loss. Great Coastal Express, 230
Va. at 151, 334 S.E.2d at 852.
Unless Schmitt’s statements are opinion, they are
sufficient to sustain a cause of action for defamation per se
because the statements prejudice Tronfeld in his profession as
an attorney at law. To state that an attorney “just takes
people’s money” and that an attorney’s clients receive less for
their claims because of the attorney’s services implies a
combination of dishonesty, incompetence or the crimes of larceny
by trick or obtaining money by false pretenses. See, e.g., Code
§ 18.2-178. As such, Schmitt’s statements “impute to [Tronfeld]
the commission of some criminal offense involving moral
turpitude,” and “impute to [Tronfeld] unfitness to perform the
duties of . . . employment . . . or want of integrity in the
discharge of the duties of such . . . employment.” Fleming, 221
Va. at 889, 275 S.E.2d at 635. Such statements damage an
attorney’s standing to engage in his or her chosen profession
and carry the connotation that he or she lacks the integrity and
fitness to practice law. The dispositive issue is thus whether
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Schmitt’s statements are opinion or contain a provably false
connotation.
Speech that does not contain a provably false factual
connotation, or statements which cannot reasonably be
interpreted as stating actual facts about a person, are not
actionable. Yeagle v. Collegiate Times, 255 Va. 293, 295, 497
S.E.2d 136, 137 (1998); see also Milkovich v. Lorain Journal
Co., 497 U.S. 1, 16-17, 20 (1990). Statements that are relative
in nature and depend largely upon the speaker's viewpoint are
expressions of opinion. Jordan, 269 Va. at 576, 612 S.E.2d at
206; see also Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d
97, 101 (1985). Whether an alleged defamatory statement is one
of fact or opinion is a question of law and is, therefore,
properly decided by the court instead of a jury. Fuste v.
Riverside Healthcare Ass'n, 265 Va. 127, 132-33, 575 S.E.2d 858,
861 (2003). Although a defamatory statement may be inferred, a
court may not “extend the meaning of the words used beyond their
ordinary and common acceptance.” Perk v. Vector Resources
Group, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997).
On appeal, Tronfeld asserts that the trial court erred in
finding that Schmitt’s statements were merely opinions and
therefore not actionable as defamation per se. Tronfeld
contends the statements are not opinion because evidence could
be presented at trial that Tronfeld is competent in his
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profession, that claimants did receive more money after hiring
Tronfeld as opposed to what the insurance company offered, and
that Tronfeld’s clients receive a measurable value for his
services in return for the fee he receives. Collectively or
separately, Tronfeld argues Schmitt’s statements are provably
false.
Citing our decisions in Chaves and Fuste, the Defendants
respond that the trial court correctly found the alleged
statements to be expressions of opinion and thus not actionable.
They argue that Schmitt’s comments cannot be proven true or
false and depended on Schmitt’s personal viewpoint for meaning.
We agree with Tronfeld.
In Chaves, an architect brought a defamation claim in
response to statements in a letter written by a competitor that
the architect had “no prior experience” and was charging “over
50% more than what could be considered a reasonable fee.” 230
Va. at 115, 335 S.E.2d at 99. This Court concluded that words
characterizing a professional as “inexperienced” do not impute
unfitness in the discharge of his professional duties. We also
held that the competitor’s statements that the architect was
charging more than a reasonable fee were insufficient as a
matter of law to state a cause of action for defamation because
it was a statement of opinion and “statements by competitors
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that they can undersell others fall on prospective customers’
ears like repetitive drumbeats.” Id. at 119, 335 S.E.2d at 101.
In Fuste, the defendant’s employees stated the two
plaintiff doctors had “abandoned their patients,” and that there
were “concerns about their competence.” 265 Va. at 130, 575
S.E.2d at 860. In rejecting the trial court’s sustaining of a
demurrer, we held the statements that the doctors had
“abandoned” their patients and that there were “concerns about
their competence” not only prejudiced the doctors in the
practice of their profession but also contained “a provably
false factual connotation.” Id. at 133, 575 S.E.2d at 861.
With these cases as a background, we conclude that, whether
considered individually or together, Schmitt’s statements “are
capable of being proven true or false” and thus are actionable
in defamation. Chaves, 230 Va. at 118, 335 S.E.2d at 101. The
statement “[t]hat Jay Tronfeld just takes people’s money” is
capable of disproof by evidence, if adduced, that Tronfeld’s
clients received monetary or other relief as a result of his
legal services. It would not be a matter of opinion that
Tronfeld takes a client’s money without rendering a service of
value in return if Tronfeld, for example, produced evidence of a
settlement or judgment he obtained for that client.
Schmitt’s other statement, “that clients of Jay Tronfeld
would receive more money [for their claims] if they had not
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hired Jay and had dealt with the adjuster [directly],” could
similarly be proven false. The statement would not be opinion
if the evidence showed a settlement or judgment Tronfeld
obtained for a client which exceeded the offer made by an
insurance company to the client prior to the retention of
Tronfeld as his or her legal counsel.
In this regard, Schmitt’s statements, whether considered
separately or together, are analogous to the defendant’s
statements in Fuste, that the plaintiff physicians had
“abandoned” their patients. We held that statement was not
opinion, but “capable of being proven true or false,” and thus
actionable in a claim for defamation per se. Fuste, 265 Va. at
133, 575 S.E.2d at 862. Schmitt’s statements in the case at bar
present a clear, if not clearer, case for proof as a matter of
fact than the statements in Fuste.
Contrary to the Defendants’ claim, the case at bar is not
controlled by Chaves. The statement at issue in Chaves, that
the plaintiff charged more than a reasonable fee, was of
necessity a statement of opinion because it was based solely on
a speaker’s viewpoint of what “reasonable” would be. 230 Va. at
119, 335 S.E.2d at 101. Thus, the statement was not capable of
being proved true or false, unlike Schmitt’s statements.
Yeagle, 255 Va. at 295, 497 S.E.2d at 137. See Fuste, 265 Va.
at 133, 575 S.E.2d at 862.
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III. CONCLUSION
For these reasons, the trial court erred in sustaining the
demurrer of the Defendants because Schmitt’s statements are
capable of “a provably false factual connotation” and are thus
not opinion. Yeagle, 255 Va. at 295, 497 S.E.2d at 137; accord
Fuste, 265 Va. at 133, 575 S.E.2d at 562; WJLA-TV v. Levin, 264
Va. 140, 156, 564 S.E.2d 383, 392 (2002). As Schmitt’s
statements could prejudice Tronfeld in his profession, those
statements do support a cause of action for defamation per se
under Virginia law. Accordingly, we will reverse the judgment
of the trial court and will remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
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