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
