PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.

PHILLIP D. WEBB
                                         OPINION BY
v.   Record No. 122024             JUSTICE WILLIAM C. MIMS
                                      January 10, 2014
VIRGINIAN-PILOT MEDIA COMPANIES, LLC


          FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                       Randall D. Smith, Judge


      In this appeal, we consider whether a published article

created a defamatory implication for which the plaintiff could

recover compensatory and punitive damages.

           I.   BACKGROUND AND MATERIAL PROCEEDINGS BELOW

      Virginian-Pilot Media Companies, LLC publishes a newspaper

of general circulation (“The Virginian-Pilot”).    In December

2009, The Virginian-Pilot published an article written by Louis

Hansen.   According to the article, Patrick Bristol (“Patrick”)

and Kevin Webb (“Kevin”) were students at Great Bridge High

School (“Great Bridge”) in Chesapeake, Virginia.    Kevin’s

brother, Brian Webb (“Brian”), was a Great Bridge alumnus.

      The article reported that on the evening of November 5,

2008, Patrick and a number of his friends drove to Kevin’s home

to confront him about school-related disagreements.    Kevin’s

father, Phillip Webb (“Phillip”), sent them away.    The article

also reported that in the early morning hours of November 7,

2008, Kevin and Brian went to Patrick’s home in retaliation.
There they engaged in a physical altercation with Patrick’s

father.

     The article included several factual statements about

Phillip.   It stated that Phillip was an assistant principal at

Oscar Smith High School, also in Chesapeake.   It stated that he

previously coached pole vaulting at Great Bridge and that one of

his former team members had gone on to earn an Olympic medal in

the sport.   It described Kevin and Brian as “pole vaulting

stars” at Great Bridge.

     The article juxtaposed the effect the November incidents

had on Patrick, Kevin, and Brian.    It stated that Kevin and

Brian were each charged with felonies and later convicted of and

sentenced for misdemeanor offenses.   Nevertheless, Kevin was

allowed to remain at Great Bridge and compete in track events.

He thereafter graduated and attended college on a track

scholarship.   By contrast, the article stated that the

Chesapeake school system offered to allow Patrick to complete

his final year at another high school.   Instead, he dropped out,

completed a General Educational Development certificate, and

anticipated beginning a shipyard apprenticeship program.

     Without expressly commenting on this disparity, the article

paraphrased a deputy director at the Virginia High School League

as stating that “a school principal typically determines whether

a student is in good standing and allowed to participate in


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sports.”      It also referred to state regulations permitting a

school system to suspend or expel a student charged with a

felony.      It included confirmation by the Chesapeake school

system’s spokesperson that a student there could be suspended or

expelled if charged with a felony. 1     It further quoted the

spokesperson verbatim as stating that “Kevin Webb ‘did not get

preferential treatment because of his dad’s position.’”      It

noted that Phillip declined to comment for the story.

        Phillip filed a second amended complaint against Hansen and

The Virginian-Pilot alleging libel, libel per se, and libel per

quod.       He asserted that the article falsely implied that he “had

engaged in unethical conduct by obtaining preferential treatment

for his son,” and that the false implication damaged his

reputation.      The defendants filed a demurrer in which, among

other things, they denied that the article created such an

implication.      They argued that it did “not suggest in any manner

that [Phillip] obtained preferential treatment for his son.        In

fact, the article expressly states that his son did not receive



        1
       In actuality, the school system’s policy was not to
suspend or expel such students. Rather, according to an
undisclosed policy administered by its supervisor of discipline,
the school system reviewed the student’s record, grades, and
attendance, and then warned the student and his parent(s) that
any subsequent violation of the rules and regulations would
result in additional discipline. This policy was not known to
the school system’s spokesperson and was not disclosed to Hansen
or The Virginian-Pilot until trial.

                                     3
preferential treatment.”    The circuit court overruled the

demurrer.

     Thereafter, the defendants moved the court to declare

Phillip a public official and thereby require him to prove

malice under the standard articulated in New York Times Co. v.

Sullivan, 376 U.S. 254 (1964).      The court granted the motion and

the case proceeded to trial.    The defendants moved to strike

when Phillip rested his case and at the close of the evidence,

arguing that the evidence was insufficient to prove New York

Times malice.     The court took the motions under advisement and

submitted the case to the jury, which returned a verdict

awarding Phillip $3,000,000 as compensatory damages.      The court

thereafter granted the defendants’ motions to strike, entered a

defense verdict, and dismissed the action with prejudice.

     We awarded Phillip this appeal.

                              II.   ANALYSIS

     Phillip asserts that the circuit court erred by granting

the defendants’ motion to declare him a public official and by

granting their motions to strike.       In an assignment of cross-

error, the defendants assert that the court erred by overruling

their demurrer.    We conclude that this assignment of cross-error

is dispositive and thus we do not reach the arguments raised in

a second assignment of cross-error and Phillip’s assignments of

error.   Deerfield v. City of Hampton, 283 Va. 759, 764, 724


                                    4
S.E.2d 724, 726 (2012); Cuccinelli v. Rector & Visitors of the

Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012).

     We review a circuit court’s ruling on a demurrer de novo.

Schilling v. Schilling, 280 Va. 146, 148, 695 S.E.2d 181, 183

(2010).

     A common law complaint for libel or slander historically

included three elements: the inducement, an explanation of the

facts demonstrating that the allegedly defamatory statement is

actionable; the colloquium, an explanation of how the allegedly

defamatory statement refers to the plaintiff, if he is not

explicitly named; and the innuendo, an explanation of the

allegedly defamatory meaning of the statement, if it is not

apparent on its face.     Black’s Law Dictionary 300, 845, 861 (9th

ed. 2009); see also Moseley v. Moss, 47 Va. (6 Gratt.) 534, 549-

50 (1850).

     It is the innuendo that is at issue in this case.    Phillip

avers that the article created the defamatory implication that

he acted unethically “by obtaining preferential treatment” for

Kevin.    It did so by juxtaposing an insinuation of special

treatment with the reported facts that he was an assistant

principal at another school in the same school system and that

he had been a successful pole vaulting coach at Great Bridge

where Brian and Kevin were successful pole vaulting team

members.   We disagree.


                                   5
     Where, as here, a plaintiff alleges that he has been

defamed not by statements of fact that are literally true but by

an implication arising from them, the alleged implication must

be reasonably drawn from the words actually used.   Chapin v.

Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993); see

also Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48, 670

S.E.2d 746, 751 (2009) (stating that a plaintiff may bring an

action for defamation for “any implications, inferences, or

insinuations that reasonably could be drawn from each statement”

of fact (emphasis added)); Union of Needletrades, Indus. &

Textile Emples. v. Jones, 268 Va. 512, 519, 603 S.E.2d 920, 924

(2004) (stating plaintiff may not bring a defamation action for

“statements which cannot reasonably be interpreted” to impute a

false fact about him (emphasis added)); Carwile, 196 Va. at 9,

82 S.E.2d at 592 (permitting an action for defamation where the

injurious factual assertion “is a reasonable implication” of the

published statements) (emphasis added)).   Thus, the question for

the circuit court when ruling on the demurrer was whether, as a

matter of law, the article is reasonably capable of the

defamatory meaning Phillip ascribes to it. 2



     2
       Phillip cites Carwile and several other cases, arguing
that Virginia law recognizes a claim for defamation by
inference, implication, or insinuation. E.g., 196 Va. at 7, 82
S.E.2d at 592. We agree that it does. However, that is not the
question here.

                                6
                 In determining whether the words and
            statements complained of in the instant case
            are reasonably capable of the meaning
            ascribed to them by innuendo, every fair
            inference that may be drawn from the
            pleadings must be resolved in the
            plaintiff's favor. However, the meaning of
            the alleged defamatory language can not, by
            innuendo, be extended beyond its ordinary
            and common acceptation. The province of the
            innuendo is to show how the words used are
            defamatory, and how they relate to the
            plaintiff, but it can not introduce new
            matter, nor extend the meaning of the words
            used, or make that certain which is in fact
            uncertain.

Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 8, 82 S.E.2d

588, 592 (1954).   This is a question of law to be decided on

demurrer.    See Perk v. Vector Resources Group, 253 Va. 310, 316-

17, 485 S.E.2d 140, 144 (1997).   Ensuring that defamation suits

proceed only upon statements which actually may defame a

plaintiff, rather than those which merely may inflame a jury to

an award of damages, is an essential gatekeeping function of the

court.

     The article draws a stark contrast between how Kevin and

Patrick were affected in the aftermath of the incidents.   This

insinuates that Kevin may have benefited from special treatment.

Nevertheless, the article does not create a reasonable

implication that Phillip solicited or procured the insinuated

special treatment.   It does not state or suggest that Phillip




                                  7
undertook any affirmative action to arrange or endorse the

school system’s disciplinary response to the incidents.

     The information in the article may suggest that Phillip had

an uncommon acquaintance with school administrators at Great

Bridge because he formerly had coached there and currently was

an administrator at another school.   It may also suggest that

they were favorably disposed towards Phillip because of his

success as a coach there.   One might reasonably infer from these

facts that Kevin would have received harsher discipline if they

were not true.   But Phillip was not implicated as the instigator

of any preferential treatment.   The reasonable implication is

that Great Bridge’s administrators may have acted on their own

initiative out of sympathy or regard for Phillip, not that he

intervened in their disciplinary decisions.   The article

disclaimed even that implication by quoting the spokesperson’s

denial. 3

     Phillip also argues that several witnesses testified at

trial that they inferred from the article that he had solicited

or procured special treatment for Kevin.   He also argues that

the jury’s verdict is conclusive because the fact-finder

determined that the article created that implication.   We again


     3
       Further, the testimony of the school system’s supervisor
of discipline established that the disciplinary decision in
Kevin’s case was not in the hands of Great Bridge’s
administrators at all.

                                 8
disagree.   As noted above, the question of whether the article

is reasonably capable of the defamatory meaning Phillip ascribes

to it is a question of law, not fact.   Resolving it is an

essential threshold, gatekeeping function of the court before a

case is submitted to the jury.   See Perk, 253 Va. at 316-17, 485

S.E.2d at 144 (concluding that the alleged statements were not

“sufficiently defamatory on their face to permit a fact finder

to decide whether in fact the statements were actually

defamatory” when determining whether a defamatory charge could

be inferred); Gazette, 229 Va. at 29, 325 S.E.2d at 733

(concluding that a “publication was sufficiently defamatory on

its face, under Carwile, to permit a jury to decide whether in

fact the statement actually was defamatory” (emphasis omitted));

Cook v. Patterson Drug Co., 185 Va. 516, 521, 39 S.E.2d 304, 307

(1946) (“It is the duty of the court to define what constitutes

insulting words, and it is for the jury to say whether the

particular words come within the definition.”).

     As a matter of law, the article is not reasonably capable

of the defamatory meaning Phillip ascribes to it.   The

implication that may be reasonably drawn from the article does

not defame Phillip.   An implication defaming Phillip cannot be

reasonably drawn.   Accordingly, the circuit court erred by

overruling the defendants’ demurrer.    However, the error is




                                 9
supplanted by its final judgment in favor of the defendants.   We

affirm that final judgment.

                                                        Affirmed.




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