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Published in: on July 29, 2010 at 8:07 pm  Comments (5)  

The Sherando Times: July 28 – August 3, 2010

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Trouble in the colonies (Season 1, Episode 1)

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Published in: on July 25, 2010 at 11:23 am  Comments (5)  

The late July issue of Warren County Report

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Published in: on July 23, 2010 at 8:26 am  Comments (1)  

You are served – council flees, fumes, threatens

Responses citing grounds for defense expected to be filed by Aug. 9

By Dan McDermott
Warren County Report

FRONT ROYAL, Va. — July 22, 2010 — Three members of Front Royal Town Council and the Town Attorney (for the town) were served with legal documents naming them as defendants in a $30-million civil suit at a Town Hall work session July 19, protesting the whole while.

“Lock ’em up,” said newly installed Councilman Hollis Tharpe as process server John Arena calmly went about his business with Town Police Lt. Clint Keller briskly raced up from behind.

The council had just voted to go into a closed session to discuss their lawsuit with the town attorney (an item conspicuously absent from the agenda) and it appeared to some that one meeting had ended but another had not yet begun as spectators, staff and reporters began packing their items up to leave.

At this point, process server Arena, 6-foot-9-inches tall and armed with size 18 feet and four 154-page copies of a lawsuit that could cost Front Royal taxpayers millions, casually sprung into action.

Arena first placed a folder in front of Town Attorney Thomas R. Robinett, thus serving notice to the town government, and walked away. Expressing some consternation Robinett said, “Sir, you are going to interrupt a public meeting?”

Arena said nothing and methodically proceeded around the table toward his next target, Vice Mayor Chris W. Holloway. Holloway sat and didn’t say anything (yet.)

Newly installed Mayor Tim Darr asked Arena if he could wait until after the closed session which the mayor promised would only last “about five minutes.” Arena slowed for a moment before placing the next folder in front of Holloway. As Arena proceeded around the mayor toward his final two targets, Holloway threw his hands into the air in exasperation.

FRPD Lt. Keller (presumably there to beef up the security normally provided solely by Chief Richard Furr) moved up behind Arena as Furr stood guard at the other side of the table.

Councilman Tharpe (perhaps emboldened since he wasn’t on Arena’s $30 million hit list) issued some advice to Arena and instructions for Keller. “You’ve been warned. Lock him up,” Tharpe said in a most serious tone.

At this point target 3, Councilman Sayre (who had been ducking behind people throughout the meeting to avoid our reporter’s camera) got up and walked to the far end of the meeting table to flee Arena and his intimidating folders. Councilman Carson Lauder, target 4, sat calmly and took it like a man. Even calmer, considering he was being threatened with jail by one councilman, being asked to wait by a mayor and town attorney and chased – albeit slowly – by one of the top two officials of the town police department, Arena simply proceeded to slowly walk around the table to drop the last two lawsuits of a lifetime in front of Lauder and at Sayre’s suddenly vacated seat. With Sayre out of camera range at the far end of the table, Arena appears to make eye contact, says, “Mr. Sayre,” and drops his final packet at Sayre’s place.

Arena, followed closely by Lt. Keller, then calmly walked out of the room and the building.

Mayor Darr (who is not an attorney and may not have realized that the serving had been completed once the packets were placed in front of the recipients) asked Chief Furr to return the complaints to Arena.

“He’s going to jail. He can’t take them to jail,” offered Tharpe, unaware that Arena had committed no crime and already left the building.

Town Attorney Robinett, realizing the deed had been done, suggested they keep the thick folders.

As the only person in the room with a video camera, I stayed to capture all this, apparently drawing the ire of target 2 Holloway who turned to me and said, “Hey Dan, this is a closed meeting,” while raising his eyebrows almost to his scalp and jabbing at the air toward the door with his pen.

“I’m leaving, chill out buddy,” I said to Holloway as I slowly packed up my things and kept the camera rolling for a few more precious seconds.

Council then went into closed session to discuss the lawsuit and were perhaps advised on the matter for the last time by Town Attorney Robinett, who’s own packet probably contained a letter from Attorney David W. Silek warning that Robinett would be called as a witness in the case and would most likely be deposed, likely making it improper for him to offer any further advice or counsel on the case to his clients.

Defense responses to the lawsuit must be filed within 21 calendar days, making Aug. 9 that deadline.

Responding to this reporter and Roger Bianchini’s comments on his actions during the process serving on WZRV’s The News at Noon on July 20, Sayre explained by e-mail, “It appeared to me he [Arena] might be arrested on the spot and I got out of the way in case there was an altercation.”

Sayre has not yet responded to our follow up question about leaving a considerably older co-defendant, Carson Lauder, to fend for himself had such an altercation, as unlikely as it seemed, occurred.

As for council criticism on the method of the serving and his notifying the media in advance of it, SolAVerde attorney David Silek told us, “It is no different than when the police alert the press about a high profile suspect being “perp walk” in front of cameras.

“They chose to publicly defame my clients and they chose this process. We publicly asked for a retraction on several occasions and that a settlement be offered. I have repeatedly asked that the source of the leak man up and come forward. To me, the only reason that person or persons haven’t yet come forward is self interest. They have put their individual self interest above that of the Town of Front Royal and exposed all of the town to liability – that’s how selfish that person is.”

“If the public wants that kind of representation then as they say, people get the government they deserve. But I can’t imagine the public wants that kind of representation,” Silek concluded.

Asked about Sayre’s explanation of his actions in being served, Silek said, “I think the video speaks for itself. It is far more telling than anyone’s attempt at self-justification.”

Dan McDermott:
editor@warrencountyreport.com

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Published in: on July 22, 2010 at 8:38 pm  Comments (1)  

The Sherando Times: July 21 – 27, 2010

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EXCLUSIVE VIDEO: Councilman asks police to lock up process server as members receive $30 million lawsuit

NOTE: This post has been updated.

By Dan McDermott
Warren County Report

FRONT ROYAL, Va. — July 19, 2010 — Three members of Front Royal Town Council and the Town Attorney were served with legal documents at a Town Hall work session tonight, protesting the whole while.

“Lock em up,” said newly installed Councilman Hollis Tharpe as process server John Arena went about his business with Town Police Lt. Clint Keller racing up from behind.

Earlier today, Warren County Report exclusively reported that the complaints in a $30 million lawsuit charging the town and three councilmen with defamation and hurting a business would be served after the work session, held most Mondays in between the more formal twice-monthly council meetings.

The council had just voted to go into a closed session to discuss their lawsuit with the town attorney (an item conspicuously absent from the agenda) and it appeared to some that one meeting had ended but another had not yet begun as spectators, staff and reporters began packing their items up to leave.

At this point, process server Arena, 6’8″ tall and armed with size 18 feet and four 154-page copies of a lawsuit that could cost Front Royal taxpayers millions, casually sprung into action.

Arena first placed a folder in front of Town Attorney Thomas R. Robinett and walked away. Looking surprised, Robinett said “Sir, you are going to interrupt a public meeting?”

Arena said nothing and proceeded around the table toward his next target, Councilman Chris W. Holloway. Holloway sat and didn’t say anything (yet.)

Newly installed Mayor Tim Darr asked Arena to wait until after the closed session “which will only last about five minutes.” Arena slowed for a moment before placing the next folder in front of Holloway.

FRPD Lt. Keller (presumably there to beef up the security normally provided solely by Chief Richard Furr) hurried to catch up to Arena and Furr stood guard at the other side of the table.

Councilman Tharpe (perhaps emboldened since he wasn’t on Arena’s $30 million hit list) issued some advice to Arena and instructions for Keller. “You’ve been warned. Lock him up,” Tharpe said in a most serious tone.

At this point target 3 Councilman Sayre (who had been ducking behind people throughout the meeting to avoid our reporter’s camera) got up and walked around the table to flee Arena and his intimidating folders. Councilman Carson Lauder, target 4, sat calmly and took it like a man. Even calmer, considering he was being threatened with jail by a councilman, being told to leave by a mayor and town attorney and chased–albeit slowly–by the top two officials of the town police department, Arena simply proceeded to slowly walk around the table and drop the last two lawsuits of a lifetime in front of Lauder and where Sayre would be again seated, once Arena had left and it was safe to return.

Arena, followed closely by Lt. Keller, simply slowly walked out of the room and left the building.

Mayor Darr (who is not an attorney and may not have realized that the serving had been completed once the packets were placed in front of the recipients) asked Chief Furr to return the complaints to Arena.

“He’s going to jail. He can’t take them to jail,” offered Tharpe, unaware that Arena had committed no crime and already left the building.

Town Attorney Robinett, realizing the deed had been done, suggested they keep the thick folders.

As the only person in the room with a video camera, I stayed to capture all this, apparently drawing the ire of target 2 Holloway who turned to me and said, “Hey Dan, this is a closed meeting,” while raising his eyebrows almost to his scalp and jabbing at the air toward the door with his pen.

“I’m leaving, chill out buddy,” I said to Holloway as I very slowly packed up my things and kept the camera rolling for a few more precious seconds.

Council then went into closed session to discuss the lawsuit and were perhaps advised on the matter for the last time by Town Attorney Robinett, who’s own packet probably contained a letter from Attorney David W. Silek warning that Robinett would be called as a witness in the case and would most likely be deposed, making it improper for him to offer any further advice or counsel on the case to his clients.

Dan McDermott: editor@warrencountyreport.com

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Published in: on July 19, 2010 at 10:00 pm  Comments (31)  

BREAKING: Council members to be served at tonight’s work session

[This story has been updated: Town, council members served.]

By Dan McDermott
Warren County Report

FRONT ROYAL, Va. — July 19, 2010 — Three members of Front Royal Town Council and the Town Attorney will be served legal documents in a $30 million lawsuit following tonight’s 7pm council work session in Town Hall, according to Manassas attorney David W. Silek.

Silek is representing SolAVerde, LLC, Donald F. Poe of Warren County and Gregory A. Horton of Strasburg, Va. who allege they were defamed and their business relationships were interfered with.

Council members Chris W. Holloway, Thomas H. Sayre and Carson Lauder are named in the suit individually. The suit seeks $30 million in actual damages to be divided up amongst the defendants and $350,000 from each of them in punitive damages.

Robinett was also sent a letter informing him that he will be called as a witness in the case and informed that he will most likely be deposed. This means he cannot represent the town or any of the defendants in the matter. This move was expected since he is named repeatedly in the lawsuit. It is anticipated that the town and the individual council members will be represented by either the Virginia Municipal League or private council.

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Fast-pitch softball champs fundraising for regionals

Warren County's 12-and-Under Babe Ruth League fast pitch Softball Virginia State Champions celebrate with trophy and practice at Chimney Field readying for regionals.

12-Under Virginia champs, 10-Under runner ups raising $ for Florida trips

By Roger Bianchini
Warren County Report

The weekend of July 17-18, two local Babe Ruth League girls fast pitch softball teams representing the Warren County Girls Softball Association will be conducting fundraisers to help facilitate trips to the Southeast Regional Tournament to be held in Alamonte Springs, Florida, near Tampa this coming week.

Both teams did their community proud last week in Richmond at the State Tournament. The Front Royal 12-and-Under girls won the Virginia State Championship and the 10-and-Under team was runner up, earning a regional berth as the state’s second place qualifier from divisions representing nearly 270 Babe Ruth League teams throughout the state. Both teams are anticipating expenses of around $10,000 to cover transportation, accommodations, meals and miscellaneous tournament expenses for the teams, coaches and family members able to make the trip.

The squads are heading into this weekend going full bore to assure they have the funds to head to Florida for Tuesday regional team check-ins and orientation meetings. Tournaments play begins on Wednesday, July 21 and progresses to the weekend.

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Warren County's 12-and-Under Babe Ruth League fast pitch Softball Virginia State Champions celebrate with trophy and practice at Chimney Field readying for regionals.

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Warren County's 12-and-Under Babe Ruth League fast pitch Softball Virginia State Champions celebrate with trophy and practice at Chimney Field readying for regionals.

If you are in town this Saturday or Sunday keep your eyes open for car washes and bake sales set up as team fundraisers. Contact numbers for those wishing to contribute directly to the teams is also posted below.

Events:

The 12-and-Unders will be hosting a car wash Saturday and Sunday, July 17-18 at the Royal Oak Tavern parking lot at 101 W. 14th Street on Front Royal’s northside from 10 a.m. till there are no more dirty cars left within the town limits;
The 10-and-unders will host a bake sale at Andrick’s Flea Market on Saturday, July 17;
and car washes at both Auto Zone and the Rite Aid parking lots this weekend as well.

Contacts:

For those not passing through town or who already have clean cars and all the baked goods they need, contributions for the teams can be made through the following individuals:

12-U – Aletha Craig, 540 671-0466 or Buzzy Williams, 540 636-4787 or 540 335-6442;
10-U – For more info on these efforts the league may be contacted at 540 974-9879.

Roster, 12-U Virginia State Champions:

Michala Caison, Emma Wright, Carrie Robinson (State Tourney MVP), Caitlyn Manuel, Myranda Garber, Makela Dawkins, Samantha Santmyers, Victoria Hamilton, Savannah Jones, Samantha Swecker, Ashley Williams, Amanda Kresge. Coach Todd Robinson noted that unfortunately two players, Manuel and Jones will not be able to make the trips due to other family commitments.

State Results, 12 and Under:
Glen Allen, W 2-1;
New Kent, L 10-1;
Varina, W 7-0;
Shenandoah, W 4-3;
Albemarle, W 10-0;
Championship Round
New Kent, W 4-1;
New Kent, W 3-2

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The 10-and Under Virginia State fast pitch softball Runner-ups get ready for their regional run

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The 10-and Under Virginia State fast pitch softball Runner-ups get ready for their regional run

Roster, 10-U Virginia State Runner Ups:

Annslee Cockrell, Natasha Grayson, Tamara Grayson, Kima Robinson, Georgia Romer, Kelsi Caison, Myrissa Garber, Rachel Sirbaugh, Camryn Greene, Jayda Saulsbury, Savannah Haffer, Lissette Maya, Libby Hipple and Karlee LeHew. As with the 12 and Unders, Coaches Mike Haffer and Angie Caison noted some loss of personnel – Maya, Hipple and LeHew – for the trip due to other family commitments and circumstances.

State Results, 10 and Under:
West Loudoun, W 17-7;
Glen Allen, L 6-0;
Albemarle, W 9-3;
Skyline, W 7-3;
Rockville, W 10-5;
Championship Round
Glen Allen, L 8-2;

Congratulations to all the players and coaches for jobs well done – GO GIRLS!!!

You can keep up with Regional Tournament results and info at the official tourney website:

http://www.altamontesports.org/softballregional.php

Warren’s 12-U Virginia State Champions begin North Division Regional Pool play on Wednesday at 6 p.m. versus Kinston Lenoir, NC. Other North Division teams include Creeks, St. John’s, FLA.; and West Ashley, Charleston, SC. One North Division team has already announced its forfeit of a place in the tournament due to the same financial and personnel issues faced by all teams at this point.

South Division teams include the host Altamonte Springs, FLA, Marshall County, TENN, New Kent, VA, and Orange Park, FLA.

The 12-U Regional Championship Round begins Saturday, July 24 at the Seminole Softball Complex with the Championship game at 8 a.m. on Sunday, July 25 at the same location.

Warren’s 10-U Virginia State Runner Ups begin South Division Regional Pool play at 10 a.m. Thursday, July 22, against Creeks, St John’s FLA. Other South Division teams include host Alamonte Springs, FLA; Marshall County, TENN; Down East, Smyma, NC.

North Division teams include Ponte Vedra, FLA; Pitt County, NC, Ocala, FLA; Goose Creek, SC; and Glen Allen, VA. There was also one team forfeit announced at the 10-U level.

The Regional Championship Round at 6 p.m. on Saturday at Merrill Park and concludes with the Championship game at noon on Sunday, July 25, also at Merrill Park Field.

Published in: on July 17, 2010 at 1:56 pm  Comments (5)  

BREAKING NEWS: Town of Front Royal, 3 councilmen sued for $30 million

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By Dan McDermott
Warren County Report

[JANUARY 6, 2018] UPDATED BELOW

FRONT ROYAL, VA – July 15, 2010 – A lawsuit was filed today seeking over $30 million dollars in damages against the Town of Front Royal and three members of Town Council: Vice Mayor Chris W. Holloway and members  Thomas H. Sayre and Carson Lauder.

The lawsuit, on behalf of SolAVerde, LLC, Donald F. Poe and Gregory Horton, all of Warren County, seeks $30,000,000 for defamatory acts, interference with a business relationship, damage to reputation and emotional and mental health and charges the town with defamation.

In addition to $30,000,000 claimed in actual damages, the suit seeks $350,000 per defendant for punitive damages.

The suit centers around pre-election allegations that the plantiffs attempted to bribe the Town Manager.

The suit was filed today by Attorneys David W. Silek and Stephanie S. Ryan of the Manassas law firm Ours and Silek, P.C.

UPDATE 1: Report from Town Attorney

From: Doug Napier
Sent: Friday, February 01, 2013 12:20
To: Front Royal Mayor Timothy Darr; Front Royal Town Councilman Carson Lauder; Front Royal Vice Mayor Chris Holloway; Front Royal Town Councilman Hollis Tharpe; Front Royal Councilman N. Shae Parker; Front Royal Councilman Thomas Sayre; Bret W. Hrbek; Carson Lauder; Chris Holloway; Daryl Lee Funk
CC: George Sonnett; JoAn Williams; Julia Judkins; Steve Burke
Subject: SolAVerde Lawsuit

Good news. The Court ruled in favor of the Town and the individual present or former Town Council members on all counts. Judge Swersky first ruled that the Town of Front Royal previously had been dismissed with prejudice as a party Defendant by Judge Peatross, and the Plaintiffs had neither sought leave from Judge Peatross to re-file a Complaint against the Town, nor had they appealed Judge Peatross’s order of dismissal to the Supreme Court. Therefore, the Plaintiffs, as a matter of law, were barred from re-filing an Amended Complaint against the Town.

Judge Swersky then ruled that, as a matter of law, there were no defamatory statements made. The statements were an inquiry as to whether anyone may have been offered bribes, and as such, these inquiries were made while the Council members were performing their duties as Council members and were exercising their discretion to perform their legislative duties and thus had sovereign immunity from being sued. In essence, the Judge ruled that Town Council was simply doing its legislative job by asking for an inquiry, and therefore, they had legal privilege to inquire into what may or may not have happened to determine whether or not any irregularities had occurred.

Judge Swersky ruled that there was no tortious interference with any of the Plaintiffs’ contractual relationships, because the Plaintiffs did not sufficiently allege any such relationships existed that were interfered with.

The Judge ruled that there was insufficient allegations by the Plaintiffs that their reputation or emotional or mental health had been damaged.

The Judge denied Plaintiffs leave to amend and re-file their Complaint yet again. Judge Swersky noted that the Plaintiffs had filed three Complaints or Amended Complaints and had not been able to state any facts that would entitle them to win against the Town or individual Town Council members, and therefore, he was not going to allow the Plaintiffs to re-file yet again.

The Plaintiffs do have the right to file a Petition for Appeal to the Virginia Supreme Court. Whether the appeal will be granted is discretionary with the Supreme Court, meaning it is up to the Supreme Court to choose whether or not it wants to hear an appeal. Even if it chooses to hear the appeal, it does not mean Judge Swersky’s decision would be reversed (overturned). Many times an appeals court will hear an appeal if it wants to make a statement concerning what the appeals court considers to be the law, or to explain what the law is.

I wish to commend Julia Judkins, Esq. for a job well done in her representation of the Town and the individual present or past Town Council members. Her pleadings and argument were to the point and professionally delivered, and reflected well on this community and its legislature.

Doug

Douglas W. Napier
Town Attorney
Town of Front Royal
P.O. Box 1560
Front Royal, VA 22630

UPDATE 2: Opinion

Re: SolAVerde, LLC, et al v. Town of Front Royal, et al
CL No.: L 10000-521-00

Dear Counsel:

This matter comes before the Court on the Demurrer file by Defendants, which was argued before the Court on May 12, 2011. The Court took the Demurrer under advisement to review the legal authorities cited and the legal arguments made.

DEMURRER

COUNT I- THE DEFAMATORY ACTS AND TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP

A. Defamatory Acts

The Demurrer to this Count is not a claim against the Town of Front Royal but raises a number of alleged defects in this Count against the three named individual Defendants: 1) the statements are not defamatory; 2) are opinion,; 3) are not identified as having been made by the three individual Defendants; 4) are privileged; 5) do not identify statements made about Plaintiffs in particular; and 6) were marked confidential and not intended for publication outside of the individuals to whom they were addressed.

In reading the Complaint, which is taken as true for purposes of the Demurrer, the gist of the defamation claimed is the publication of a defamatory statement to the local newspaper by a member of the Town Council identified as Exhibit #5 to the Complaint. Paragraphs 36 and 37 fail to allege that one of the named Defendants “leaked” the Robinette Memorandum (Exhibit #5) to Ben Orcutt, a reporter for the newspaper.

As to paragraph 1) above, Exhibit #5 contains the alleged defamatory statement. It states: “The following day, I asked him specifically what he was talking about the night before, and he told me that Standard Energy/Solar/SolaVerde or whatever had offered the Town 200 jobs (which I had heard about before, when they asked the EDA for a lease, but not from their response to the RFP) and $1.2….Two of you called me that afternoon, independently, one of the other, and asked me about the “incentives”, specifically asking whether or not they were “bribes” within the meaning of the law.”
From a reading of the Complaint, on March 30, 2010, the Town Manager, Michael Graham, was asking Thomas R. Robinett, the Town Attorney, what to do about the “incentives” offered by “Standard Energy/Solar/SolarVerde or whatever.” The Memorandum with E-Mail and Memorandum from Troutman Sanders reflecting the events of March 29-30 was sent by Robinett as Town Attorney to the Mayor and Members of Town Council on April 8, 2010, The “[T}wo of you” in the Memorandum are identified in the Complaint in Paragraph 30 as being Defendants, Chris Holloway and Carson Lauder. What is noted in bold above is the alleged defamatory statement by Defendants Holloway and Lauder.

As to Defendant Lauder, the Court has searched the Complaint for his alleged defamatory statement or statements. In paragraph 57 it is stated that the three Defendants voted on June 14, 2010 to first request a criminal investigation by the Virginia State Police. At page 11 of Exhibit 11 to the Complaint, Mr. Sayre moved to request this investigation. Later Mr. Sayre moved to refer the matter to a Special Grand Jury. In paragraph 58, Mr. Sayre “noted his hope to have an independent agency with integrity investigate the matter.” Id. at 14.

As noted in Fuste v. Riverside Healthcare Assoc., 265 Va. 127, 134 (2003), good pleading in a defamation case requires that the exact words spoken or written be set out in the declaration in haec verba. “Whether an alleged defamatory statement is one of fact or opinion is a question of law and is, therefore, properly decided by a court instead of a jury.” Id at 132-33.

The elements of a defamation claim are: (1) a defendant made a statement of fact; (2) about the plaintiff; (3) that was heard or seen by someone other than the plaintiff; (4) which statement was false; and the defendant knew the statement was false or, believing it to be true, lacked reasonable grounds for such belief or acted negligently to ascertain the facts on which the statement was based. VMJI-Civil, Vol. 2, No. 37.020

As to any alleged defamatory statement made by Defendants Holloway and Lauder, there is none. The statement about the Plaintiffs made by Michael Graham is the statement which the Plaintiffs say is false. That statement is made to Thomas R. Robinette, who reported it to the two Defendants. The two Defendants, Holloway and Lauder, asked a legal question of Robinette, the Town Attorney, about whether the “incentives” were bribes within the meaning of the law. Such a statement is not a statement of fact about the Plaintiffs and is not an opinion. It is a question. Therefore, there is no defamatory statement alleged to go forward against Defendants Holloway and Lauder.

As to Defendant Sayre, there is no statement or statements made by him about the Plaintiffs. He stated he wanted the matter raised by Mr. Robinette in his Memorandum of April 8, 2010 investigated. The wording of his request was investigation “…related to the solar project the Request for Proposal (RFP) and communications regarding the RFP between elected officials and appointed officials, including staff….” Exhibit 11, page 11. On page 6 of Exhibit 11, it is noted: “Councilman Sayre asked Chief Furr questions relating to the solar/bribery issue.” These words are not false statements of fact about the Plaintiffs.

As to other grounds of the Demurrer, the Court is not addressing them because no defamatory statements have been alleged.

B. Tortious Interference With Business Relationship

As stated in Defendants Memorandum, in order to state a claim for tortious interference with a business relationship or contract, a plaintiff must show: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of that specific relationship or expectancy on the part of the defendants; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the plaintiff whose relationship or expectancy has been disrupted. Chaves v. Johnson, 230 Va. 120-21 (1985).

In reading the Compliant, paragraph 68 is the only reference to a business expectancy or relationship of Plaintiffs. It states: “Due to tortious statements by Defendants, officials and potential customers in Tennessee and Alabama have refused to do business with Plaintiffs and have cited statements attributable to defendants regarding bribes and unethical behavior as the reason for terminating the business relationship with plaintiffs.”

This claim fails as elements (2) and (3) above have not been satisfied in the pleadings. There are no such allegations.

COUNT II- DAMAGE TO REPUTATION AND DAMAGE TO EMOTIONAL AND MENTAL HEALH

There are no new allegations regarding a defamation claim in this Count. There is may be some allegation regarding the intentional infliction of emotional distress. In an action for the intentional infliction of emotional distress, the Plaintiffs have not met their burden under the test set forth in Womack v. Eldridge, 215 Va. 338 (1974) or Jordan v. Shands, 255 Va. 492, 498-99 (1998). The Demurrer is sustained as the Count II.

COUNT III- DEFAMATION BY THE TOWN OF FRONT ROYAL

Defendant Town of Front Royal demurs to the Complaint and states that the Town is entitled to sovereign immunity because it was making a governmental decision. In other words, at all times it was acting or engaging in a governmental, legislative, and/or discretionary capacity, pursuant to lawfully delegated powers and authority.

City of Chesapeake v. Helen Cunningham. Helen Cunningham v. City of Chesapeake, 268 Va. 624 (2004) provides a very good discussion on this question and stands for applicable legal authority. It stated: “In the context of sovereign immunity, Virginia municipal corporations exercise two types of functions: governmental and proprietary. Gambrell v. City of Norfolk, 267 Va. 353, 357-58, 593 S.E. 2d 246, 249 (2002)….” Id at 633.

“Governmental functions are powers and duties performed exclusively for the public welfare….A function are governmental if it entails the exercise of an entity’s political, discretionary, or legislative authority.” Id at 632.

“Sovereign immunity protects municipalities from tort liability arising from the exercise of governmental functions.” Id at 632.

“This court has consistently held that when a municipality plans, designs, regulates or provides a service for the common good, it performs a governmental function.” Id at 632.

As noted in Defendants’ Memorandum: “The doctrine of sovereign immunity protects municipalities from tort liability arising out of the exercise of governmental functions.” Niese v. City of Alexandria, 264 Va. 230, 234 (2002).

The acts alleged in the Complaint amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal. The Demurrer to Count III is sustained.

CONCLUSION

For the reasons noted above, the Demurrer as to defamation, tortious interference with a business relationship, and emotional distress is sustained with leave granted to Plaintiffs to file an Amended Complaint within 14 days of the entry of an order. The Demurrer as to Count III is sustained. No leave is granted to file an Amended Complaint unless good cause can be shown to permit amendment. Ms. Judkins is directed to prepare an order consistent with this opinion, circulate it to opposing counsel for endorsement, and present it to the Court for entry.

Very truly yours,

Paul M. Peatross, Jr.
Judge Designate

CC: Jennifer R. Sims, Clerk

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AUDIO interview from today on The news at Noon from The River 95.3 FM and WFTR 1450 AM.

Published in: on July 15, 2010 at 6:28 pm  Comments (10)  
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