SHARON D. YEAGLE, COLLEGIATE TIMES,

RECORD NO. 971304

SHARON D. YEAGLE,

COLLEGIATE TIMES,

JOINT APPENDIX

Daniel S. Brown James R. Creekmore WOODS, ROGERS

CLERK

& HAZLEGROVE, P.L.C. First Union Tower, Suite 1400 Post Office Box 14125 Roanoke, Virginia 24038-4125 (540) 983-7600

Counsel for Appellee

tANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477 A Division of Lanttgne Duplicating Services

Table of Contents Page Number

Motion for Judgment filed 5/13/96 with attachment ....................... 1

Demurrer and Grounds of Defense filed 6/6/96 ........................... 9

Amended Demurrer filed 8/26/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Letter Opinion dated 2/27/97 ........................................ 18

Order Sustaining Amended Demurrer filed 3/18/97 ....................... 21

Assignments of Error ....... · ....... 0 o • 0 • o • o • o •• 0 o •• o o •• o • o o • 0 ••• o • 0 o 23

LAW OFFICES

GENTRY LOCKE RAKES & MCDRE

ROI.NCKE. VIRGINIA

·-. VIRGINIA:

IN THE CIRCUIT COURT FOR THE COUNTY OF MONTGOMERY

SHARON D. YEAGLE,

Plaintiff,

v.

COlLEGIATE TIMES, an Unincorporated Association Serve: Katy Sinclair,

Editor-in-Chief, or any other representative 363 Squires Student Center Blacksburg, VA 24060

Defendant.

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Law No.

MOTION FOR .JUDGMENT

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COMES NOW the plaintiff, Sharon D. Yeagle ("Yeagle"), by counsel, and moves

the Court for judgment against· the defendant, Collegiate Times ("defendant"), on the

grounds and in the amount as hereinafter set forth:

THE PARTIES

1. The plaintiff, Sharon D. Yeagle is a full time employee of Virginia Tech, and

resides in Blacksburg, Virginia.

2. The defendant, Collegiate Times, is an unincorporated association which

publishes and disseminates a newspaper from Virginia Tech, and maintains its offices at

363 Squires Student Center in Blacksburg, Virginia.

3. The Collegiate Times was established in 1903 and is the largest and oldest

newspaper in the Blacksburg area. It is published every Tuesday and Friday. The

Collegiate Times is available throughout the world on the Internet and on the World Wide

1:

LAW OFFICES

GENTRY LOCKE ,RAKES & M:I:RE

ROANOKE. VIRGINIA

Web - http:\ \www.vt.edu:10021\news\collegiatetimes\ct.html. Included within this

distribution area is the campus of Virginia Tech, the Town of Blacksburg and Montgomery

County.

4. On information and belief, the Collegiate Times regularly reaches a

readership of more than 30,000 readers and boasts a per-issue circulation of 14,000

newspapers. On further information and belief, the Collegiate Times is distributed free-of-

charge on the Virginia Tech campus, and throughout Virginia and elsewhere by paid

subscription and otherwise.

THE FACTS

5. On or about April 30, 1996 the defendant published an article in the

Collegiate Times on page A6 entitled "Tech Sends Seven Students to Governors Fellows

Program."

6. The article appeared in defendant's regular issue and contained a serious

discussion of the accomplishments of several successful Virginia Tech students. It was not

a parody.

7. The article included several direct quotes of Yeagle. The defendant

identified Yeagle in the article's text as the "Assistant to the Vice President for Student

Affairs."

8. The article also contained a quotation, which it represented as Yeagle's, that

defendant extracted from the text and placed in the center of the article in bold print.

Following the quotation the article identified "Sharon Yeagle" as the source. Defendant

identified Yeagle's professional title as "Director of Butt licking."

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LAW OFFICES

~Ei\!TRY LOCKE ~AKES & fv1CDRE

ROANOKE. VIRGINIA

9. The context of the statement made by defendant appeared as follows:

(Emphasis in original)

(Fellows) will not only have the opportunity to work directly with members or the Governor's Cabinet or Executive Office Statr, but will serve as ambassadors or Virginia Tech.

SHARON YEAGLE Director of Butt Licking

10. Attached and marked Exhibit I to this Motion for Judgment is a copy of the

language published by the Collegiate Times which forms the basis for this action.

11. Notwithstanding the uncontrovertible falsity and injurious nature of this

statement, and resulting damage to Yeagle's reputation, the defendant has not retracted

the false and defamatory statement.

COUNT I

DEFAMATION PER SE

12. Yeagle incorporates by reference the allegations made in paragraphs 1 - 10

herein and further alleges as follows.

13. The article published by defendant, set fonh herein contained false and

defamatory statements about Yeagle, which naturally and presumably understood, imputes

the commission of a crime involving moral turpitude and therefore constitutes defamation

14. The article published by defendant, set fonh herein contained false and

defamatory statements about Yeagle, which naturally and presumably understood, injured

Yeagle in her capacity as an employee of Virginia Tech and by egregiously misstating her

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LAW OFFICES

. GENTRY LOCKE RAKES & MCERE

ROANOKE. VIRGINIA

professional title necessarily injured Yeagle's employment, office, and professional standing

without justification and therefore constitutes defamation per ~-

15. The defendant published the defamatory statement knowing of its falsity

and/ or with reckless disregard as to the truth or falsity of the statement.

16. The defendant published the defamatory statement with malice and in

conscious disregard of the rights of Yeagle or the substantial danger to Yeagle's reputation.

17. As a proximate result of the false and defamatory statement published by the

defendant, Yeagle has suffered damage to her reputation, suffered shame, humiliation,

_embarrassment, ridicule, exposure to public infamy, disgrace, scandal, injury to her feelings,

financial loss, and has been hampered in the conduct of her professional and personal

affairs. Much of this injury will endure permanently.

18. The statement and actions of the defendant constitute defamation per se for

which Yeagle seeks judgment against the defendant for actual, presumed, compensatory,

and punitive damages as more fully described in the Demand below.

COUNT IT

DEFAMATION

19. Yeagle incorporates by reference the allegations made in paragraphs 1 - 17


20. The defendant negligently and carelessly published the false and defamatory

statement identifying Yeagle's professional title as "Director of Butt Licking."

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LAW OFFICES

GENTRY LOCKE RAKES & tvKDRE

ROANOKE, VIRGINIA

21. The defendant published the defamatory statement knowing that it was false

or, even if the defendant believed it to be true, lacked reasonable grounds for such belief

and acted negligently in failing to ascertain the facts on which the publication was based.

22. The defamatory statement published by the defendant makes substantial

danger to Yeagle's reputation apparent The defendant's statement not only misstates

Yeagle's professional title, but also egregiously insults Yeagle in her capacity as an

employee of Virginia Tech and in her employment, office and professional standing.

23. As a proximate result of the false and defamatory statement published by the

defendant, Yeagle has suffered damage to her reputation, suffered shame, humiliation,

embarrassment, ridicule, exposure to public infamy, disgrace, scandal, injury to her feelings,

financial loss, and has been hampered in the conduct of her professional and personal

affairs. Much of this injury will endure permanently.

24. The statement and actions of the defendant constitute defamation for which

Yeagle seeks judgment against the defendant, for actual, presumed, compensatory and

punitive damages as more fully described in the Demand below.

COUNT Ill

INSULTING WORDS PURSUANT TO VIRGINIA CODE § 8.01-45

25. Yeagle incorporates by reference the allega~ons made in paragraphs 1 - 23


26. The defamatory statement published by the defendant is actionable under

§ 8.01-45 of the Code of Virginia, as amended.

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LAW OFFICES

GENTRY LOCKE RAKES & rvn>RE

ROANOKE. VIRGINIA

27. The defendant's statement imputes to Yeagle conduct that remains codified

as criminal conduct in the State of Virginia, and egregiously misstates her professional title

in such a manner that it necessarily injures her employment, office, and professional

standing. These words, from their usual construction and common place acceptance are

construed as insults and tend to violence and breach of peace, and are therefore actionable

under§ 8.01-45 of the Code of Virginia, as amended.

28. As a result of defendant's conduct and defamatory statements in violation

of Virginia Code§ 8.01-45, Yeagle has been injured and damaged as more fully set forth

in the Demand below.

DEMAND

As a direct and proximate cause of defendant's wrongful conduct, as previously

described, plaintiff, Sharon D. Yeagle, suffered and will continue to suffer substantial

injury, damage to her reputation, loss of reasonable expectation of privacy, shame,

humiliation, embarrassment, ridicule, exposure to public infamy, disgrace, scandal, injury

to her feelings, financial loss, and has been severely hampered in the conduct of her

professional and personal affairs.

WHEREFORE, plaintiff, Sharon D. Yeagle, demands judgement against the

defendant as follows:

1. Compensatory damages in the amount of Five-Hundred Thousand Dollars

($500,000) against defendant, together with pre-judgment interest from April30, 1996.

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LAW OFfiCES

GENTRY LOO<E :w<ES & MCDRE

ROANOKE. VIRGINIA

2. Punitive damages in the amount of Three-Hundred Fifty Thousand Dollars

($350,000) with pre-judgment interest from April30, 1996; and

3. An additional award against defendant, in an amount equal to plaintiff's

costs, including reasonable attorney's fees incurred in these proceedings, together with

prejudgment interest on said amounts.

SHARON D. YEAGLE

By: (.~JL/ ---+---O~f~C~o~~--e-1~~~-------

S. D. Roberts Moore (VSB No. 3456) Charles H. Smith, ill (VSB No. 32891) GENTRY LOCKE RAKES & MOORE 800 Crestar Plaza P.O. Box 40013 Roanoke, Virginia 24038-0013

Counsel for plaintiff Sharon D. Yeagle

578\1\266830.1 7

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r. i. STlJlEKT AFFAIRS

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i"TeCh"sends seven~studeilts to;-.~ :~)GOvernor's FellQWS .Progr~ . . . . .. . . :-,. '(· ... -··: ..... .: ... ?.

::ROBIN LAA'IZ · ~-:··. -~; · .·. : · leader.· .. · . · · . ... : :.... · . ·. • .CDIIeg1mlJmes • Amy Gorsbciloff is a psychology major,t :: A record numbe: of candidates from concentrating in ·women's studies. : :Y,irgiDia ·Tc=h 'have been seleaed to partici- ·Gorshenoff h2s workeo as a re~ident advi-: ~pate in the 1996 Virgini2 Governo~' s .·.sor and an. associatejustic.e in fJl~ .l:ID.der- ..

-::Fe}lowsProg:ani.·-:.::,: · ··"··.·· ·-.. .· ....... graduate Honors System. ·: ·• ... · .. :.: .· · ·· :-:·This yer Tc6h ~~Ul provide one·founb of . Seth Ginthc:,· also a fo:me: presid:n: of : ~ th: 28 fellows seie:ied from :Virginia col-·. the Sruaent Government. Asso:iatiCl:, has : leges' _&nd univ::Sities: This is the largcs~ .. served. on many committees, .including :. number any Virgilitt'Univ:.~ty -has sent~ tinive.rsity Council, Co!:lmitt~e on :. the pro~-·s·16 yea..~: · · · · · . Academic Suppor: and seve:-al s~:!.rch · '"I have :-:ceiv=c se,·::al comolimentt, teams. He is a m::nber of Sir:ma .~i-oba . ·o:De''frolll. 2ll offi:i&ll o! the progi-am fro~ E~silon, wbi:l: r::o~::iz:r:.11: is~ i:s , : · Rlchmonci"' sai~ Sh2.ron Y:agie7 assistant national unde::-raduat: of :he,yea:. . . : to'ibe vice -:.1r:sicie~-: io:- s:"Jde:lt t!:ai:s. "Ee .Mar'\' Ell:~ jones is t:Ju:sui:u::: h:::- do;:or· : . saic he: WaS nl:es:~· witt th: nici: c:ilib:: at: in 'Sci:n:e .a!lC te::inoio~·-s:ucii~s. S~e · · aiic hi;:h ·q~ali·r~· c: Vi:g!nii ':'ec!:"! ·hoids tirc.mesr::=! cie~::s-m .P?ul::~.- s:i-. ·.

=D'dicates CIS v:a:." . . eD:e and business a:;i:::inist:Gtio::. : · •· F:llowsi:i:ls · re :i:::::e'c · · · l.:;):l RaW:: is ~ fi:Jm:: · : t6 a grou? c'f t2.i::ue~f and · majo: v.itb m.bo:s m ~c-.. bighly motivate:! individu· : · (FeJiaws) will not nomics and political sci-

. als that v:.lll b:ne!i: f:o~ . . . only have tba e?c:. ~he _.has s:u~ird · :xn:rienci~~ the n:oce-ss o! · · ·· : ··- · .. ...... ·: aoroa.d m Rh-a S2r. Vt:aJ:, ·

-:state goveim:n~ a:::~rci- · ~pportunlty to· work Switze:lant:. enc iD-CnW.. in~ to a ·n~ ::l:ase. . .frredtv with .. She is mvoi~:: m ~:river-. Tn: relel!e saic the P* · . • · · si:\· He no:-~ Associates,

•• £;!2.:%: alsc s::ives to . members of ~8 S~dc:H B~siness .CO\!::lcil m::.gt.ie~ :he ti:s be:wee::' governor's cabinet or- ·:!:1::! s':ive~ as !he tnibilci!\· tb: stat: t!overoit::u: t:lci :h~i7 fc~ tile ~=~- Rh·e~ Vir£inia's· a:acie:nie co:n· · 'executive effie~ Aids Walk. She was also nlLUlity, the=by buiiding a · . staff, but Will serve named SrJdent o: the Y:a: . mutual sense of understand- ·.as ambassadors o( ·in the Colle2e of!susin:ss. ing anti rapport b::we:n th: John Whitley will . two institutions: ·. VIrginia Tech. . n~::eive his d:gr:e ii: ~gri-

rTbe :Fellows will wo:k c:'Jltu:al an~ anolic: sci-for cabinet membe:s within :nces 2nd ani::l~ scien:es. agencies of tbe Virginia He is a c::ber of Phi governme:lt. lnte:ns mzy ··~a Phi anc Block and work in -e=:~nomic develop- :: ·:·. .· Bridie. H: was named :men~ iustice and law, ·finm~, administra- Outstanding Srud:nt m toe College of Agri· : tio~ ~nvironmental issues, family iss~es, culrure, and has been rccocized by Wbo r s . law enfor:emenlt criminal justice, trans· Wbo·amoJtg colleges and Wrlversities .. portation or educ:1tion. · : · · Mark Zacharias is a.n e:onomics and . Applica:i1S must be graduating college political sci== maj,ot. He is a member of seniors or :nroDed ~ degree Candidates in a . tbe ·varsity cross. c:ount:-y and track team . graduate or prof:ssional school. Fellows· and. a representative to tbe Student are assigned to work with members of tb~ Government. H: was a1sc selected £or _governor's cabin:: or executive 'office staff. m:mb:rship to the Wno•s W:1c 2lilong col- : !The program, whi:h runs during June and · leges and universities. . July, atte~ts to mat:h Fellows ~ith com- "We are proud of all sev:n Fellows," 1

patiblc:_assignm.cnts according to tbeir Yeagle said. "Tb:y will not pnly.have the baekgroUDds and mterests. opl)ortUnity to work direc:tlv v;ith mcmb:tS .::six graduating senio~ and one graduate of the governor's cabine: or executi-ve,

snid:nt fro2:1 Tech will participate in this office staff, but will S...'T/e as ambassadors yw's program. . · ofTecb." -8 · ... 'fShilo!: :S~tes is !. graduating senior .in This· prog:-am will a!sc !3: cff:rec n:xt

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P. 002

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.VIRGINIA:


SHARON D. YEAGLE,

Plaintiff,

v.

COLLEGIATE TIMES, an unincorporated association,

Defendant.

DEMURRER

Law No. V-10467

DEMURRER AND GROUNDS OF DEFENSE

Defendant Collegiate Times, by counsel, respectfully demurs

to the allegations of the Motion for Judgment which fail to state

a cause of action against the defendant in that, under applicable

constitutional law principles, the language complained of by the

,plaintiff cannot reasonably be interpreted as stating actual

facts about the plaintiff herein. From the face of the article,

attached to and made a part of the Motion for Judgment, it is

apparent that the words complained of were either a patent error

(which in fact they were) or a tasteless spoof (which in fact

they were not) . In either case, the words are not actionable as

!I defamation.

GROUNDS OF DEFENSE 'i :: :l COMES NOW the Collegiate Times, defendant herein, by !I llcounsel, and states as its Grounds of Defense to the Motion for

~~!Judgment filed against it: ~CI!Au !

. I M#339468

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1. The allegation in paragraph 1 that Sharon D. Yeagle is

a full time employee of Virginia Tech is admitted; defendant does

not know whether plaintiff resides in Blacksburg, Virginia.

2. The allegations in paragraph 2 are admitted.

3. Defendant does not know whether the allegations in

paragraph 3 are true or false, except that it is admitted that

the Collegiate Times was established in 1903; that the Collegiate

Times is published every Tuesday and Friday during the academic

school year, except on holidays and during exams, and one time

during the summer; that the Collegiate Times is available on the

Internet and World Wide Web at http:\\www.vt.edu:10021\news\CT\;

and that the Collegiate Times' distribution area includes the

campus of Virginia Tech, the Town of Blacksburg, and Montgomery

County.

4. The allegations in paragraph 4 are admitted.

"THE FACTS"

5. The allegations in paragraph 5, 6 and 7 are admitted.

6. The allegations in paragraph 8 are denied, except that

defendant admits that a quote taken from the text of the article

;~was placed in the. center of the article, followed by the name :; !i"Sharon Yeagle" and the phrase "Director of Butt Licking." !

7. With respect to the allegations contained in paragraphs ,:

:: 9 and 10, the copy of the newspaper article attached as Exhibit I ·i

ii to the Motion for Judgment speaks for itself. ,, •• llof Exhibit I is admitted.

)()DS.R~ II iAZLEGROVE. .I

.illllr7lt)IS4fll.n&• jl

!IM#339468

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The authenticity

8. With respect to the allegations in paragraph 11, it is

admitted that a correction of the obvious error has not yet been

made in the Collegiate Times, but only because no edition of the

paper has been published since the April 30, 1996 issue. A

correction will be printed in the next issue, to be published in

July, 1996. Further, the reporter who formatted the quote at

issue personally delivered to the plaintiff a letter of apology

and telephoned and personally made an apology to plaintiff by

recording since the plaintiff could not be reached.

COUNT I

DEFAMATION PER SE

9. The responses to paragraphs 1-10 of the Motion for

Judgment are incorporated by reference.

10. The allegations in paragraphs 13-18 are denied.

COUNT II

DEFAMATION


Judgment are incorporated by reference.

12. The allegations in paragraphs 20-24 are denied.

COUNT III

INSULTING WORDS PURSUANT TO VIRGINIA CODE §8.01-45


·Judgment are incorporated by reference. IODS, ROGERS :: IAZLEGROVE r ·; .o\lwmM41t'-• • ·: 14 .

!I The allegations in paragraphs 26-28 are denied.

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15. All allegations not expressly admitted herein are

denied.

16. It is denied that defendant committed any act for which

it is liable to plaintiff.

17. It is denied that plaintiff has suffered any injury or

damage, whether actual, presumed, compensatory or otherwise, as

alleged in the Motion for Judgment.

18. It is denied that plaintiff is entitled to recover

against the defendant the amounts demanded in the Motion for

Judgment, or any amount whatsoever.

19. It is demanded of plaintiff that she offer strict proof

of any and all injury or damages claimed in the Motion for

Judgment, whether actual, presumed, compensatory or otherwise.

AFFIRMATIVE DEFENSES

As additional defenses to the plaintiff's claims, defendant

states:

20. The article and the information contained therein

giving rise to this action cannot reasonably, naturally or

presumably be read or understood to allege against or impute or

attribute to plaintiff the commission of a crime involving moral

turpitude or any conduct constituting a crime under the laws of

the Commonwealth and therefore does not constitute defamation or

defamation per se.

21. The article and the information contained therein do

~:not convey statements or information about plaintiff which, from :i 'I 'I :! M#339468 -4-

12

their usual construction and common acceptance, could be

construed as insults or tend to violence or breach of the peace

and, therefore, are not actionable pursuant to Section 8.01-45 of

the Code of Virginia.

22. The offending words in the article complained of

resulted from the use of a template allowing a quote from the

article to be set out to highlight a portion of the story. The

template form was set up with a fictitious name and title which

would be changed by insertion of the actual name and title of the

person quoted for publication. By simple human error the name of

the plaintiff was properly inserted but the change of title was

not made in this instance, resulting in the wholly accidental and

unintentional publication of the words of which the plaintiff

complains.

23. The circumstances of the publication of the article

giving rise to this action conclusively demonstrate that such

publication was made in good faith and without actual (New York

Times) malice, common law malice, reckless or conscious disregard

of the truth or falsity of the information contained therein, or

knowledge of any.alleged falsity of the information contained

therein, and without negligent or careless indifference to the

truth or falsity of the information contained therein.

24. The plaintiff's title is correctly stated in the body

of the published story. The offending words cannot be taken

.literally, do not allege the commission of a crime, were not X>DS. ROGERS : iAZLEGRCM:F '~ .-u~ctL.tu•

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injurious to the plaintiff in her profession or employment, and

were not defamatory of her.

25. The plaintiff is assistant to the vice president for

student affairs at Virginia Tech who submitted a press release

and was interviewed for the article complained of. The article

concerned matters of legitimate public interest. As a public

official and/or public figure with respect to the published

story, the plaintiff may not recover on any theory absent proof

of actual (New York Times} malice, and the defendant is entitled

to the defenses of freedom of speech and press guaranteed by the

First Amendment to the United States Constitution and by

Article I, Section 12 of the Constitution of Virginia.

26. An apology has been made to the plaintiff for the

error, both in ~riting and verbally, and a correction will be

published in the next edition of the Collegiate Times.

27. To the extent the language complained of constitutes

opinion, the plaintiff may not recover therefor in a defamation

action.

28. The article was published under circumstances giving

rise to a qualif~ed privilege under Virginia law.

29. The defendant reserves the right to amend its Grounds

of Defense hereafter should it be so advised in the protection of

·its legitimate interests.

RESPECTFULLY SUBMITTED, THE COLLEGIATE TIMES

JODS, ROGERS ;: HAZLEGROIEf :

.·\ltomtv.S ar L.lu•

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:x>DS. ROGERS :! HAZLf.GR(NE( ..

;I :I

Daniel S. Brown, Esq. (VSB # 03327) James R. Creekmore, Esq. (VSB # 36246) WOODS, ROGERS & HAZLEGROVE, P.L.C. First Union Tower, Suite 1400 10 South Jefferson Street P.O. Box 14125 Roanoke, Virginia 24038-4125 (540) 983-7600

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the

foregoing Demurrer and Grounds of Defense was served on counsel

for plaintiff, Sharon D. Yeagle, by mail, postage prepaid,

addressed to S. D. Roberts Moore, Esq., and Charles H. Smith,

III, Esq., Gentry, Locke, Rakes & Moore, 800 Crestar Plaza,

P.O. Box 40013, Roanoke, Virginia, 24038-0013, on this the s-~

day of June, 1996.

Of Counsel

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WOODS. ROGERS & HAZI..El1ROVE:

Attamrllsld Lw

VIRGINIA:


SHARON D. YEAGLE,

Plaintiff,

v.

COLLEGIATE TIMES, an unincorporated association,

} ) } ) ) } ) } ) ) Defendant.

AMENDED DEMURRER

Law No. V-10467

AMENDED DEMURRER

Defendant Collegiate Times, by counsel, respectfully demurs

to the allegations of the Motion for Judgment which fail to state

a cause of action against the defendant in that, under applicable

constitutional law principles, the language complained of by the

plaintiff cannot reasonably be interpreted as stating actual

facts about the plaintiff herein. From the face of the article,

attached to and made a part of the Motion for Judgment, it is

apparent that the words complained of were either a patent error

(which in fact they were) or a tasteless spoqf (which in fact

they were not). In either case, the words are not actionable as

defamation.

In addition, Plaintiff's claim herein pursuant to Virginia's

insulting words statute does not arise from a situation in which

the allegedly defam~tory statement "tend[ed] to violence and

breach of the peace." Therefore, the Virginia insulting words

statute does not provide for a cause of action on the facts and

circumstances on which Plaintiff's claim is premised.

M#352919

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....-... •.

WHEREFORE, Defendant Collegiate Times respectfully requests

of this Court an order sustaining this demurrer, dismissing j:

:l Plaintiff's Motion for Judgment with prejudice, and awarding :t

'I 1! Defendant its reasonable expenses and costs incurred in

connection herewith.

RESPECTFULLY SUBMITTED, THE COLLEGIATE TIMES

Daniel S. Brown, Esq. (VSB # 03327) James R. Creekmore, Esq. (VSB # 36246) WOODS, ROGERS & HAZLEGROVE, P.L.C. First Union Tower, Suite 1400 10 South Jefferson Street P.O. Box 14125 Roanoke, Virginia 24038-4125 (540) 983-7600


CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Amended Demurrer was served on counsel for plaintiff, Sharon D. Yeagle, by mail, postage prepaid, addressed to S. D. Roberts Moore, Esq., and Charles H. Smith, III, Esq., Gentry, Locke, Rakes & Moore, 800 Crestar Plaza, P.O. Box 40013, Roanoke, Virginia, 24038-0013, on this the26.~ day of August, 1996.

~Counsel

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T~ ~ITY~SEVENTH jUDICIAL CIRC.. r OF VIRGINIA

RAY W. GRUBBS, juooE MONTOOMERY CoUNn' COUimiOUSE

P.O. Box389 CHlUSTlANSBURO, VIROINlA 24073

TELEPHONE: (703) 382~2222 (703) 382~5754

F.o\X: (i03) 382-6922 CoWWONWEALTH OF VuiGJNIA

February 27, 1997

Mr. S. D. Roberts Moore Gentry, Locke, Rakes & Moore Attorneys at Law P. 0. Box 40013 Roanoke, VA 24038-0013

Mr. Daniel S. Brown Woods, Roge=s & Hazelgrove Attorneys at Law P. 0. Box 14125 Roanoke, VA 24038-4125

Re: Sharon D. Yeagle v. Collegiate T~es

Gentlemen:

cmcurr COt.m:r FOil THE COUN'TlES OF

BlAND, CAlUlOU.. FLOYD, CJUS,

GM'JSON. .CONTOOMER.Y, ~AND WYTHE

CRC\JlT COUKT FOR THE CIT1ES OF QALAX AND RADFORD

Before the Cou~t is defendant, Collegiate Times' , Amended Demurrer to plaintiff, Sharon D. Yeagle's, ·Motion for Judgment in which she alleges defamation pe~ se in Count I, defamation in Count II and defamation actionable unde~ Section 8.01-45 of the Code of Virginia, as amended, in Count III.

It is elementary that the purpose of any demurrer is to test the sufficiency of the pleadings, admitting the truth of all material facts alleged and all reasonable inferences arising therefrom. In putting plaintiff's pleadings to such test, the Court finds as follows:

Count I

Common law words which are actionable per se in Virginia have been set out in Ca~ile v. Richmond Newsoaoers. Inc., 196 Va. 1, 82 S.E. 2d 588 as follows:

(1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the cha=ge is t=ue, may be indicted and punished. (2) Those which impu~e that a person is

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Mr. Moore Mr. Brown Page 2

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February 27, 1997

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 discha~ge of the duties of such an office or employment. (4) ~hose which prejudice such person in his or her profession or trade.

In examining the text in which the phrase 11 Director of Butt Licking" is found, the Court !:as closely scrutinized the context thereof and determines that no reasonable person would conclude that such title or oh~ase cor.vevs factual information that Ms. Yeagle is accused of comm:..tt:..ng a::y c::-ime, much less a:1y 11 Crime acainst:. nature" as found in Secticn 18.2-3 61. Granted, the plaintiff is entitled, on demurrer, to any reasonable inference in her favor. Howeve~, the phrase is void of any literal meaning. It does not impute to her any crimi:1a2 offense involving moral tu~itude. ~~y reasonable person ~eacing this title or hearing this title would not conclude that plai~ciff was charged with a crime. The title, likewise, within its context, cannot reasonably be said to impugn the i~tegrity cr professionalism of the plaintiff. Even an infe~ence t~a~ through this title she cultivates favors from othe~s or di::-ects those who do, does not convey any factual information about ~e::- or her employment. It car~ot be taken lite~ally.

For these reasons, the demu~rer as to Count I is sustained.

Count II

As a matter of law, the phrase 11 Director of Butt Licking" is not actionable. As previously noted, it has no literal meaning. It is slang language implying the cultivation of favors from others. It would be unreasonable to interpret this title as conveying directly or by inference, any defamatory, factual information about the plaintiff.

Ms. Yeagle was named in the article as the person res~onsible for coordinatina the Virainia Governor's Fellows Program. It was a serious, noteworthy article about the placement of a record number of Virginia Tech students in this program. In reading this, it would be unreasonable for one to conclude that the title in such article was factual. The context plainly and

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Mr. Moore Mr. Brown Page 3 February 27, 1997

clearly dispels any suggestion that the title coveys any factual information about the plaintiff. The title at issue is totally inconsistent with the context of the article. The use of the title is too absurd to be taken seriously.

Notwithstanding the above, Ms. Yeaale could easilv find the use of this title to be personally offensive and repuisive. This Court certainly does not condor..e its use. Yet, any subjective embarrassment which she may experience does not, in and of itself, damage her reputation. In the contex~ in whic~ it was used, the title cannot be reasonably understood to convey factual information about her.

Fer these reasons, the demu==== to Cccnt I! is susta~ned.

Count III

As stated by the plaintiff in A1 1 e!l & Rocks, Inc. v. Dowell, November 1, 1995, at 5, the Vi=~ir.ia Sup=eme Court has held that in order to recover under Secticn s.o:-45 (Insulting Words Statute) the plaintiff must prove the insulti=g language tends to violence and breach of the peace. Ms. Yeagle argues she has been accused of a crime and behavior tha~ is insulting and tends to violence and breach of the peace. ~t would be unreasonable to reach this conclusion as no factual information about Ms. Yeagle has been conveyed in the title "Director of ·3uc-= Licking" to impute to her the commission of a c=ime and thereby sufficient for a finding that the words were insulting and tended to violence and a breach of the peace. Plaintiff's allegat:ions hereunder are insufficient to state a cause of action.

For these reasons, the demurrer is sustained as to Count III, and the Court dismisses the plaintiff's causes of action, without prejudice.

Mr. Brown, kindly prepare an order incorporating this ruling and ci=culate for endorsement and objections prior to entry.

RWG:lhc cc:

With my kindest personal regards, ! remain

Very truly vours,

R~~ Mr. ~~lan C. Burke, Clerk

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- .....

VIRGINIA:


'b SHARON D. YEAGLE,

Plaintiff,

v.

COLLEGIATE TIMES, an incorporated association,

Defendant.

) ) ) ) ) ) ) ) ) )

Law No.: V-10467

ORDER SUSTAINING AMENDED DEMURRER

This matter having come before the Court on Defendant Collegiate Times' Amended

Demurrer and the arguments of counsel thereon, the Court finds that as to each of Counts

I, II and III of Plaintiffs Motion for Judgment, Plaintiffs Motion for Judgment fails to state

a cause of action.

Accordingly, for these reasons, as more fulJy set forth in the letter opinion of this

Court of February 27, ~ 997, it is HEREBY ORDERED that Defendant's Amended

Demurrer is SUSTAINED as to each of Counts I, II and III of Plaintiffs Motion for

Judgment, and Plaintiffs causes of action therefore are DISMISSED without prejudice.

The Clerk is diret:ted to forward to ctJunse! of record a c·!rtified copy (lf thjs Order •

578\ I \lJCX)()7. J

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WE ASK FOR THIS:

THE COLLEGIATE TIMES

By: (3_1, .. ,.~~ ~~ Of Counsel

DanielS. Brown, Esquire James R. Creekmore, Esquire Woods. Rogers & Hi:zl~grove First Union Tower, Suite 1400 10 South Jefferson Street Post Office Box 14125 Roanoke, Virginia 24038-4125 (540) 983-7600


SEEN AND OBJECfED TO:

SHARON D. YEAGLE

~y: { ' 1f Counsel

S. D. Roberts Moore (VSB No. 3456) Mark W. Dellinger (VSB No. 37845) GENTRY LOCKE RAKES & MOORE 800 Crestar Plaza P.O. Box 40013 Roanoke, Virginia 24038-0013 (540) 983-9348

Counsel for Sharon D. Yeagle

S78\ 1\339007.1

•

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ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN BOLDING THAT THE PHRASE "DIRECTOR OF BUTT LICKING" WAS NOT CAPABLE OF CONVEYING A DEFAMATORY MEANING AS A MATTER OF LAW AND SUSTAINING DEFENDANT'S AMBNDED DBKURRER ON THAT BASIS

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SHARON D. YEAGLE, COLLEGIATE TIMES,

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