Letter to Parties - Opinion in Sharp v Landmark

February 24, 2010

Conrad M. Shumadine, Esq. Willcox & Savage One Commercial Place, Suite 1800 Norfolk, VA 23510 Mr. John Sharpe 13088 Lighthouse Lane Carrollton, VA 23314 RE:

John Sharpe v. TWCC Holding Corporation, Inc.; Landmark Media Enterprises, LLC, dba The Virginian Pilot Media Companies, LLC and The Virginian Pilot; and David Mastio Civil Docket No. CL09-6738:

Gentlemen: This matter comes before the Court on the Special Plea of the Statute of Limitations and the Special Plea of Res Judicata and Collateral Estoppel of TWCC Holding Corporation, Inc., Landmark Media Enterprises, LLC, dba The Virginian Pilot Media Companies, LLC and The Virginian-Pilot, and Mr. David Mastio (“Defendants”) to Mr. John Sharpe‟s (“Plaintiff‟s”) Complaint. Having considered the issues, the record, the parties‟ oral and written arguments, and the relevant statutes and judicial authority, the Court sustains in part and overrules in part the Special Plea of the Statute of Limitations; sustains in part and overrules in part the Special Plea of Res Judicata; sustains in part and declines ruling in part on the Special Plea of Collateral Estoppel; and allows for a very limited opportunity to relitigate the issues of Plaintiff‟s statuses as a public official and a public figure.

The effects of these conclusions, as explained below, are that the Court‟s summary judgment rulings from the nonsuited case are incorporated into the present case, and are conclusive, and preclude relitigation, of the issues they addressed and resolved. The parties can relitigate the issues of Plaintiff‟s statuses as a public official and a public figure only if they intend to present new and non-cumulative factual evidence and recently decided case law that bears directly on those issues. Otherwise, the Court‟s public official and public figure determinations are also incorporated into the present case and are conclusive of the issues they addressed.

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I. BACKGROUND Plaintiff “filed his [eventually nonsuited] [c]omplaint on March 11, 2008, alleging that the defendants1 defamed him on March 15, 2007, by their publication of an editorial.” (Special Plea of Res Judicata & Collateral Estoppel, Ex. A p. 1.) According to Plaintiff, the editorial falsely accused him “of, among other things, undermining his nation, being an open racist and anti-Semite, fundraising for anti-Semitic „crackpots,‟ and participating in supremacist activities in violation of Navy Regulations.” (Id.) The defendants in that case denied defaming Plaintiff.

(Id.) As the litigation progressed, the defendants eventually moved the Court to declare Plaintiff a public official and a public figure and for summary judgment. (Id.) The parties argued those motions on March 11, 2009, and the Court issued a Letter Opinion ruling on the issues presented on April 6, 2009. (Id.) In the Letter Opinion, “[t]he Court rule[d] that [Plaintiff] constitutes a public official within the meaning of New York Times v. Sullivan and Rosenblatt v. Baer . . .” (id., Ex. A p. 3), but it found “that [Plaintiff] is not a limited-purpose public figure”2 (id., Ex. A p. 7). The Court granted summary judgment to the defendants with respect to certain identified excerpts from the editorial, specifically, those portions that claimed Plaintiff‟s writings “are openly racist and antiSemitic” (id., Ex. A p. 11), Plaintiff said that “Jews are responsible for „centuries of usury and at least one century‟s (and two world wars‟) worth of godless and conscious-less Empire‟” (id., Ex. A p. 14), and “[Plaintiff] used his groups to raise money for holocaust revisionist Jim Condit, an Ohio crackpot who claims that Zionist Jews engineered Adolph Hitler‟s rise to power” (id.).3 The Court also found, however, that the defendants‟ “use of quotations in the editorial, and its other factual assertions with respect to [Plaintiff] and about which he complains, constitute matters on which the minds of reasonable persons might differ in this case,” and it therefore denied summary judgment with respect to those claims. (Id., Ex. A p. 17.)

On April 16, 2009, this Court issued an Order in which it confirmed and incorporated its findings in the Letter Opinion. (Id., Ex. B.) Specifically, the Order stated:

1

The defendants in the nonsuited case were “Landmark Communications, Inc., dba The Virginian-Pilot, and David Mastio.” The Court takes notice of the fact that those defendants are either the same as or in privity with Defendants in the present case.

2 The defendants did not contend that Plaintiff is a public figure for all purposes; they instead argued that he is a limited purpose public figure. (Id., Ex. A. p. 7.)

3 This Opinion identifies these rulings in more detail below.

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For the reasons set forth in the Court‟s letter opinion, which is hereby incorporated by reference and made a part hereof, the Court hereby GRANTS the Defendants‟ Motion to Declare John Sharpe a Public Official, DENIES the Defendants‟ Motion to Declare John Sharpe a Public Figure, and GRANTS IN PART AND DENIES IN PART the Defendants‟ Motion for Summary Judgment.

(Id.) Thereafter, Plaintiff moved to nonsuit the action pursuant to Va. Code Ann. § 8.01-380, and on April 16, 2009, this Court issued an Order, which stated, “NOW, THEREFORE, it is ORDERED that plaintiff‟s action is hereby nonsuited.” (Id., Ex. C.) Plaintiff filed his Complaint in the case at bar on October 23, 2009. Defendants responded with their Special Plea of the Statute of Limitations, in which they argue that the applicable statute of limitations bars some of Plaintiff‟s defamation claims in the present Complaint, and their Special Plea of Res Judicata and Collateral Estoppel, in which they contend that, pursuant to those doctrines, Plaintiff is precluded from relitigating the issues settled by this Court‟s summary judgment, public official, and public figure rulings in the nonsuited case.

II. ANALYSIS A. SPECIAL PLEA OF STATUTE OF LIMITATIONS The first issue to consider is whether a statute of limitations bars any of Plaintiff‟s claims, and the Court addresses this issue by consulting the statute of limitations in section 8.01-247.1, the tolling rules related to nonsuits, and the in haec verba pleading rule for defamation claims.

The relevant statute of limitations provides, “Every action for injury resulting from libel, slander, insulting words or defamation shall be brought within one year after the cause of action accrues.”

Va. Code Ann. § 8.01-247.1 (2007). However, the rules governing the right to nonsuit a claim provide for some extension of the statute of limitations. If a plaintiff nonsuits his or her action pursuant to section 8.01-380 of the Virginia Code, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer.

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Va. Code Ann. § 8.01-229(E)(3) (2007). The Supreme Court of Virginia has elaborated on what gets “tolled” pursuant to section 8.01-229: “In order that the time during which a former action while pending may be available in repelling the statute in a subsequent case between the parties, it accordingly appears that the cause of action in the two cases must be substantially identical.”

Brunswick Land Corp. v. Perkinson, 153 Va. 603, 611, 151 S.E. 138, 141 (1930) (emphasis added).

In addition to complying with the statute of limitations and the rules governing tolling, a defamation plaintiff seeking to refile his claim after a nonsuit faces an additional requirement, that claims for defamation be specified in haec verba. According to this rule, in a cause of action for libel, slander, or insulting words, “[g]ood pleading requires that the exact words spoken or written must be set out in the declaration in haec verba. Indeed, the pleading must go further, -that is, it must purport to give the exact words.” Fed. Land Bank v. Birchfield, 173 Va. 200, 215, 3 S.E.2d 405, 410 (1939). While this rule appears patently rigid, the Court acknowledged that a failure to set forth the exact defamatory words in the initial pleading does not defeat a defamation cause of action: [The original petition] was defective in that it did not purport to give the exact words claimed to have been used by defendant, but it did state a substantial cause of action imperfectly. Mere details, such as the time, the place, the names of defendant‟s agent and the names of the parties to whom the slander was published or communicated, were given in a bill of particulars. While it is better pleading to state these in plaintiff‟s original pleading, when such details are not set forth in such pleading, they are proper matters to be stated in a bill of particulars, which was done in this case.

Id. at 217, 3 S.E.2d at 411. From the observations of the Court in Perkinson and Birchfield, this Court extrapolates the following rule: A failure to set forth the defamatory words in haec verba in an initial pleading of a defamation cause of action does not defeat that cause of action via the statute of limitations as long as 1.) that pleading meets the basic requirements of an initial pleading in Virginia (i.e. “notice” pleading), 2.) the defamatory words are set forth in haec verba in some subsequent pleading at a reasonable time prior to trial, and 3.) the later-articulated specific defamatory words are “perfecting” the imperfectly pled defamation cause of action, not alleging a new defamation cause of action.4 See also, discussions, Gov’t Micro Res., Inc v.

4

The United States District Court for the Eastern District of Virginia, sitting in diversity and applying Virginia defamation law, noted the general rule, “[A]s courts have uniformly recognized, each separate defamatory

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Jackson, 271 Va. 29, 38–41, 624 S.E.2d 63, 68–69 (2006); Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 132–34, 575 S.E.2d 858, 861–62 (2003).

In the instant case, the cause of action for each allegedly defamatory statement accrued on March 15, 2007, the date Defendants published the editorial. Plaintiff had one year from that date to file his defamation case. Plaintiff filed the original complaint on March 11, 2008, four days before the statute of limitations in section 8.01-247.1 expired as to each allegedly defamatory statement in the editorial. On April 16, 2009, Plaintiff nonsuited his case, and according to section 8.01-229(E)(3), he had six months from that date to recommence his action without being barred by the statute of limitations. Plaintiff filed the present Complaint within the six-month timeframe.

Pursuant to applicable Virginia defamation law, Plaintiff‟s filing of his initial pleading in the nonsuited case tolled the statute of limitations only with respect to the defamatory statements initially alleged. The statute of limitations was not tolled as to any allegedly defamatory statement that was not at issue in the initial lawsuit, and therefore, it bars the litigation of any such “new” allegedly defamatory statement in the present action.

In light of these findings, the Court must identify any allegedly defamatory statements Plaintiff failed to plead in haec verba, either in the initial pleading or in subsequent pleadings that perfected the initial pleading, in the nonsuited case but nevertheless pleads in the present case. The only such statement this Court observes is located in paragraph 27 of Plaintiff‟s present Complaint, in which Plaintiff alleges that Defendants “falsely and defamatorily claimed that [Plaintiff]‟s purported views, as alleged in the editorial, are „dangerous‟ because they are „crazy – and when uttered by a commissioned officer, they take on the aura of authority.‟” (Compl. ¶ 27.) The Court finds that Plaintiff failed to plead that particular defamation in haec verba in the prior proceeding, and therefore, the tolling provisions of section 8.01-229(E)(3) did not toll the statute of limitations with respect to that particular statement. Hence, the Court sustains Defendants‟ Special Plea of the Statute of Limitations with respect to that statement, to the extent that it may be actionable at all. Since it appears that Plaintiff pled the rest of his defamation claims in haec verba in the nonsuited case, Defendants‟ Special Plea of the Statute of Limitations otherwise is overruled.

The Court notes that both the Complaint in the nonsuited case and the Complaint in the present action incorporate the entire editorial that contains all of the allegedly defamatory statement itself constitutes a separate and distinct cause of action.” Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 911, 914, 915 n.4, 917–18 (E.D. Va. 2004) (citations omitted).

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statements. Plaintiff implies that this incorporation amounts to pleading the defamatory statements in haec verba. (Pl.‟s Mem. in Opp‟n to Defs.‟ Special Pleas of the Statute of Limitations, Res Judicata, & Collateral Estoppel 5, 6.) The Court disagrees with such a broad position, however, because an allegation that an editorial, when viewed holistically, is defamatory does not equate to an allegation that each individual statement within the editorial is defamatory.5 B. SPECIAL PLEA OF RES JUDICATA [BAR] 1. Res Judicata [Bar] – General Considerations Next, the Court considers whether the doctrine of res judicata requires that it incorporate into this case its previous decisions regarding Defendants‟ Motion for Summary Judgment and Motion to Declare John Sharpe a Public Official and a Public Figure. Traditionally, the doctrine of “[r]es judicata encompasses four preclusive effects, each conceptually distinct, which a final personal judgment may have upon subsequent litigation. These are merger, direct estoppel, bar, and collateral estoppel.” Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 326 n.6 (1955) (citing Restatement of Judgments § 45 (1942))). “Res judicata-bar is the particular preclusive effect commonly meant by use of the term „res judicata,‟” id. at 670, 202 S.E.2d at 920, and from the parties‟ arguments, it is evident that their references to “res judicata” are, in fact, references to the claim-preclusive “bar” effect of res judicata.6 See Va. Sup. Ct. R. 1:6.

Pursuant to res judicata-bar, “[a] valid, personal judgment on the merits in favor of [a] defendant bars relitigation of the same cause of action, or any part thereof which could have been litigated, between the same parties and their privies.” Id. at 670–71, 202 S.E.2d at 920–21 (citing Restatement of Judgments §§ 47, 62, 83 (1942)). This definition of res judicata-bar essentially is incorporated into Rule 1:6 of the Rules of the Supreme Court of Virginia, which adopts the traditional understanding that the term “res judicata” refers to a claim-preclusive “bar” effect. According to the Rule:

5

While Plaintiff likely disagrees with the Court‟s conclusions on how the statute of limitations affects his defamation claims, the end result of the ruling is that the statute of limitations only bars those claims that make the present action broader in scope than the original. This is consistent with Plaintiff‟s repeatedly stated intention that the present case be no broader in scope than the nonsuited case.

6 This section will use the term “res judicata-bar” to distinguish this legal concept from the other three types of res judicata.

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A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or thirdparty pleading.

Va. Sup. Ct. R. 1:6(a).

It is clear that both this case and the prior nonsuited case involve the same conduct, transaction, or occurrence and the same parties or their privies. 7 Thus, the question of whether the Rule 1:6 preclusive effect applies in the present case depends on whether this Court‟s rulings in the nonsuited case constituted final judgments on the merits.

2. Res Judicata [Bar] – “Final Judgment on the Merits” and the Effect of Nonsuit For Rule 1:6 to preclude claims contrary to this Court‟s rulings in the nonsuited case, the rulings or the nonsuit order must have constituted a “final judgment” and have been “on the merits.” With respect to finality of judgments, “[a] decree is final only when it disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court in the cause except its ministerial execution.” Brooks v. Roanoke County Sanitation Auth., 201 Va. 934, 936, 114. S.E.2d 758, 760 (1960) (citing Feldman v. Rucker, 201 Va. 11, 17, 109 S.E.2d 379, 384 (1959); Southwest Va. Hosps. v. Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83 (1951); Richardson v. Gardner, 128 Va. 676, 682, 105 S.E. 225, 227 (1920)). On the other hand, “[w]here further action of the court in the cause is necessary to give completely the relief contemplated by the court, the decree is not final but interlocutory.” Id. (citing Mann v. Clowser, 190 Va. 887, 896, 59 S.E.2d 78, 82 (1950); Cocke’s Adm’r v. Gilpin, 1 Rob. (40 Va.) 20, 27–28 (1842); 11 Mich. Jur., Judgments & Decrees § 7, p. 33).

As for the requirement in Rule 1:6 that a final judgment be “on the merits” for res judicata-bar to apply, the Court has explained:

7

“For purposes of this Rule, party or parties shall include all named parties and those in privity.” Va. Sup. Ct. R. 1:6(d).

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A judgment is on the merits when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.

Storm v. Nationwide Mut. Ins. Co., 199 Va. 130, 134, 97 S.E.2d 759, 761 (1957) (citation omitted).

If, prior to granting a nonsuit, a “trial court has reached a final determination in a proceeding regarding any claims or parties to claims, those claims and parties are excluded by operation of law from any nonsuit request.” Dalloul v. Agbey, 255 Va. 511, 514, 499 S.E.2d 279, 281 (1998). Moreover: As used in [the nonsuit statute,] Code § 8.01-380(A), the term “the action” refers to the action then pending before the court, namely, the counts or claims remaining in a case at the time the nonsuit request is made. Claims that have been dismissed with prejudice are not part of a pending action, because a dismissal with prejudice is generally as conclusive of the parties‟ rights as if the action had been tried on the merits with a final disposition adverse to the plaintiff. . . . Thus, . . . under the language of Code § 8.01-380(A), “the action” subject to a plaintiff‟s nonsuit request is comprised of the claims and parties remaining in the case after any other claims and parties have been dismissed with prejudice or otherwise eliminated from the case.

Id. at 514, 499 S.E.2d at 281.

3. Res Judicata [Bar] – This Court’s Summary Judgment Rulings in the Nonsuited Case Were “Final Judgments” and “On the Merits”8 8

The specific rulings are as follows. First, the Court granted the defendants‟ Motion for Summary Judgment with respect to the editorial‟s declaring Plaintiff‟s views to be “openly racist and anti-Semitic.” (Special Plea of Res Judicata & Collateral Estoppel, Ex. A p. 11.) It determined that Plaintiff‟s writings, as a matter of law, “do espouse anti-Semitic and racist views” (id., Ex. A p. 12), and it concluded that “reasonable persons could not differ in concluding that [Plaintiff‟s] views . . . are racist towards Jews” (id., Ex. A p. 14). In other words, the Court found that it was not defamatory for the editorial to characterize Plaintiff‟s views as “openly racist and anti-Semitic.” (Id., Ex. A pp. 11, 14.)

Second, the Court granted “the defendants‟ [M]otion for [S]ummary [J]udgment with respect to” the editorial‟s declaring that Plaintiff claimed “Jews are responsible for „centuries of usury and at least one century‟s (and two world wars‟) worth of godless and conscious-less Empire.‟” (Id., Ex. A p. 14.) The Court found “that

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Based on the Court‟s logic in Dalloul, this Court‟s summary judgment rulings dismissing certain claims for defamation, see supra note 8, constituted final judgments of those claims. In Dalloul, the Court considered a case in which a trial court dismissed four of the plaintiff‟s seven claims pursuant to time-bars and the non-existence of a recognized cause of action, and subsequently granted a nonsuit. Dalloul v. Agbey, 255 Va. 511, 513, 499 S.E.2d 279, 280 (1998). The Court said, “[W]hen the trial court dismissed with prejudice Counts III through VI, the respective defendants obtained a final disposition of those counts that was adverse to [the plaintiff] and was res judicata as to those claims.” Id. at 514, 499 S.E.2d at 281 (citation omitted). Similarly, when this Court granted the defendants‟ Motion for Summary Judgment in part in the nonsuited case, the Court issued a final disposition with respect to any claims that the subject quotations were defamatory; those particular claims for defamation did not require any further judicial action because they had been concluded. Thus, the summary judgment rulings satisfied the “final judgment” requirement of Rule 1:6 with respect to the adjudicated claims.

In addition, the summary judgment rulings met the “on the merits” aspect of Rule 1:6.

The Court‟s Letter Opinion, in addressing the motions at issue, including the Motion for Summary Judgment, stated: Since coming at issue in the lawsuit, the parties have engaged in relatively extensive discovery, including depositions, interrogatories and responses thereto, requests for production of documents and attendant document production, the filing of United States Navy personnel-related documents (under seal), and the filing of the affidavits (by [Plaintiff]). During the March 11th hearing, counsel told the Court that it could use all such materials, specifically including deposition transcripts, to decide the pending motions. Since that date, the Court has reviewed and considered these voluminous materials.

[Plaintiff] did make th[at] quoted statement and, in so doing, he clearly implicated Jews as culprits for those things.”

(Id.) “Moreover, the defendants‟ use of the quote in paragraph 6 of the editorial did not in any way result in a material change in the meaning conveyed by the statement as [Plaintiff] originally published it.” (Id. (citation omitted).) Thus, the Court concluded that Plaintiff‟s claim for defamation failed with respect to that particular quotation. (See id.)

Third, the Court granted summary judgment to the defendants with respect to the editorial‟s statement that “[Plaintiff] used his groups to raise money for holocaust revisionist Jim Condit, an Ohio crackpot who claims that Zionist Jews engineered Adolph Hitler‟s rise to power.” (Id.) The Court concluded “that the editorial accurately characterized [Plaintiff]‟s association with and fundraising effort for the individual referenced as „Jim Condit.‟” (Id., Ex. A p. 15.) This conclusion eliminated from the litigation Plaintiff‟s defamation claim with respect to that quotation. (See id.)

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(Special Plea of Res Judicata & Collateral Estoppel, Ex. A p. 2 (emphasis added).) This clearly indicates that the Court‟s summary judgment rulings were “based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends.” Storm v. Nationwide Mut. Ins. Co., 199 Va. 130, 134, 97 S.E.2d 759, 761 (1957). It is equally clear that the summary judgment rulings “amount[ed] to . . . decision[s] as to the respective rights and liabilities of the parties . . . .” Id. As a result, the summary judgment rulings satisfy the “on the merits” element of Rule 1:6.

This Court did not nonsuit the claims that it had already ruled upon in its Letter Opinion and the Order that incorporated it because “„the action‟ subject to a plaintiff‟s nonsuit request is comprised of the claims . . . and parties remaining in the case after any other claims . . . have been dismissed with prejudice or otherwise eliminated from the case.” Dalloul, 255 Va. at 514, 499 S.E.2d at 281 (emphasis added). Although the Court did not specify that its summary judgment rulings were “with prejudice,” the Letter Opinion and its attendant Order make clear that this Court eliminated from the case all defamation claims regarding the purported falsity of the subject statements in the editorial.

In sum, this Court‟s summary judgment rulings satisfy the requirements of Rule 1:6.

Consequently, Defendants‟ Special Plea of Res Judicata is sustained with respect to those portions of the Motion for Summary Judgment that were sustained in the nonsuited case, and the Court incorporates those summary judgment rulings into this case.9 Plaintiff may not now relitigate those claims.

4. Res Judicata [Bar] – This Court’s Granting of the Motion to Declare John Sharpe a Public Official and Denial of the Motion to Declare John Sharpe a Public Figure in the Nonsuited Case This Court‟s decisions in the prior suit regarding the Motion to Declare John Sharpe a Public Official and a Public Figure are similar to the situation the Court faced in Wilby v. Gostel, 265 Va. 437, 578 S.E.2d 796 (2003). In Wilby, the administrator of the decedent‟s (Newton‟s) estate had filed two counts of negligence and willful and wanton conduct against Wilby. Id. at 441, 578 S.E.2d at 798. The trial court issued a letter opinion that found, in part, that Newton had been guilty of contributory negligence as a matter of law; this did not end the case, however, “because plaintiff allege[d] „willful and wanton‟ conduct by . . . Wilby. The trial court directed counsel for Wilby to submit an Order for partial summary judgment on the issue of . . . Newton‟s 9

Because this conclusion establishes that the summary judgment rulings in the nonsuited case are res judicata-bar preclusive, it is unnecessary to rule upon whether the doctrine of collateral estoppel, addressed below, also applies to the summary judgment rulings.

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contributory negligence, preserving the remaining issues for trial.” Id. at 442, 578 S.E.2d at 799.

Two months thereafter, the trial court entered an order reflecting the findings of contributory negligence and preserving the issues of whether Wilby‟s actions were willful and wanton and whether Wilby could rely on Newton‟s contributory negligence as a defense. Id. Ten days later, the plaintiff moved for a nonsuit as to the claims against Wilby. Id. at 443, 578 S.E.2d at 799. In response, “Wilby proferred a draft order that would grant the nonsuit, but expressly preserve the trial court‟s ruling that Newton was contributorily negligent, and limit any refiling by [the plaintiff] to „the causes of action that survived the . . . order.‟” Id. at 443, 578 S.E.2d at 799. The trial court determined that Dalloul did not apply to the particular nonsuit issue it faced “because the granting of partial summary judgment in favor of the defendants did not dismiss any claim(s) or count(s) with prejudice.” Id. Based on this reasoning, “the trial court awarded [the plaintiff] a nonsuit on all claims”; Wilby appealed. Id. On appeal, the Court agreed with the trial court‟s conclusion, and it distinguished Wilby from the Dalloul case, stating: In Dalloul, each count of the motion for judgment contained a separate claim based upon a distinct theory of liability. . . . The trial court‟s dismissal of those counts eliminated entirely from the case those theories of liability and the evidence that would have been adduced thereon. Here, by contrast, the trial court‟s ruling did not eliminate either count 1 or count 2 or otherwise limit the evidence that would be relevant to the resolution of the claims made in those counts. *

*

*

[T]he trial court correctly determined that its ruling on Wilby‟s motion for summary judgment did not render final judgment on the claims asserted [against Wilby in the plaintiff‟s] motion for judgment. Rather, the ruling had the effect of an in limine determination that in the posture of this case [the plaintiff]‟s burden of proof would be to establish willful and wanton negligence.

Id. at 445, 446, 578 S.E.2d at 800, 801. Having made these findings, the Court held that the plaintiff “was entitled under Code § 8.01-380 to take a voluntary nonsuit as to her entire cause of action and as to all the defendants.” Id. at 446, 578 S.E.2d at 801.

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In the predecessor case, this Court granted the Motion to Declare John Sharpe a Public Official and denied the Motion to Declare John Sharpe a Public Figure. (Special Plea of Res Judicata & Collateral Estoppel, Ex. A p. 6.) These decisions did not reach the level of res judicata-bar. Like the trial court‟s summary judgment finding in Wilby, this Court‟s public official and public figure decisions only “had the effect of . . . in limine determination[s],” which established the standard of proof Plaintiff would have to meet at trial to succeed on his defamation claims. (Id.) This Court‟s findings regarding Plaintiff‟s statuses as a public official and public figure did not result in a dismissal or final judgment of any claims to which the public official and figure determinations corresponded.

This lack of finality renders the doctrine of res judicata-bar inapplicable to the public official and public figure decisions. Hence, Defendants‟ Special Plea of Res Judicata is overruled with respect to this Court‟s prior determinations that Plaintiff is a public official but not a public figure.

C. SPECIAL PLEA OF COLLATERAL ESTOPPEL The next question is whether the doctrine of collateral estoppel precludes the parties from relitigating the prior public official and public figure issues in the present litigation.

Collateral estoppel is the [issue-]preclusive effect impacting in a subsequent action based upon a collateral and different cause of action. In the subsequent action, the parties to the first action and their privies are precluded from litigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action.

Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974) (citing Restatement of Judgments §§ 68, 82 (1942)). There are four requirements that a proponent of collateral estoppel must establish before the doctrine applies: (1) the parties to the two proceedings must be the same; (2) the factual issue sought to be litigated must have been actually litigated in the prior proceeding; (3) the factual issue must have been essential to the judgment rendered in the prior proceeding; and (4) the prior proceeding must have resulted in a valid, final judgment against the party to whom the doctrine is sought to be applied.

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Whitley v. Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296, 299 (2000). Finally, the Court also acknowledges that “[c]ollateral estoppel is applied with less vigor to issues of law.”

Clinchfield Coal Co. v. Barton, 6 Va. App. 576, 580 n.6, 371 S.E.2d 39, 41 n.6 (1988).

Based on this authority, this Court‟s prior determinations that Plaintiff is a public official but not a public figure do not collaterally estop the parties from relitigating those issues in the present litigation. First, the Court observes that its prior determinations of whether Plaintiff is a public official or a public figure resolved questions of law (Special Plea of Res Judicata & Collateral Estoppel, Ex. A. p. 2), and therefore collateral estoppel should be applied with “less vigor” in the present litigation than if the decisions had resolved questions of fact. Clinchfield Coal Co., 6 Va. App. at 580 n.6, 371 S.E.2d at 41 n.6.

More importantly, Defendants cannot establish that this Court‟s public official and public figure rulings meet all four requirements of collateral estoppel. While it is apparent that Defendants do meet the first two requirements (same parties, legal issue actually litigated), the third requirement, “the [legal] issue must have been essential to the judgment rendered in the prior proceeding,” cannot be met. The findings of law that the Plaintiff is a public official but not a public figure were not essential to any judgment rendered in the prior proceeding. It is true that the judgments certainly would have been essential had Plaintiff pursued his claims to their ultimate conclusion rather than taking a nonsuit, but he did not do so.

Similarly, the fourth requirement of collateral estoppel, “the prior proceeding must have resulted in a valid, final judgment against the party to whom the doctrine is sought to be applied,” is lacking. The analysis of whether the fourth requirement of collateral estoppel is met is similar to the analysis used above in determining whether the public official and public figure rulings met the “final judgment” requirement of Rule 1:6. As explained above, those rulings merely “had the effect of . . . in limine determination[s]” that established Plaintiff‟s standard of proof for his defamation claims. See Wilby v. Gostel, 265 Va. 437, 446, 578 S.E.2d 796, 801 (2003). Unlike the Dalloul case, in which the Court found finality existed because entire claims had been dismissed, this Court simply did not reach a final judgment as to the defamation claims to which the public official and public figure determinations would ultimately relate.

Finally, collateral estoppel applies when the cause of action in which the doctrine is invoked is a different cause of action than that in the original case. Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921 (1974) (citation omitted). However, this case involves the same cause(s) of action in defamation as the nonsuited case.

In light of these findings, Defendant‟s Special Plea of Collateral Estoppel is overruled with respect to this Court‟s public official and public figure determinations in the nonsuited case.

RE: Sharpe v. TWCC Holding Page 14

D. EFFECTS ON THE PRESENT LITIGATION OF THE PUBLIC OFFICIAL AND PUBLIC FIGURE DETERMINATIONS IN THE NONSUITED CASE While the determinations that Plaintiff is a public official but not a public figure in the nonsuited case are not binding in the present case pursuant to the doctrines of res judicata-bar and collateral estoppel, the Court recognizes that if the same parties were permitted to relitigate those issues with the same evidentiary foundation and the same legal authorities, reason dictates that the Court would reach the same conclusions. Thus, in considering the effects, if any, the public official and public figure determinations should have on the present case, the Court consults the doctrine of “law of the case.” “As most commonly defined, th[at] doctrine . . . posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16, (1988)).

The doctrine of “law of the case” and its underlying policies serve as helpful references in reaching an appropriate conclusion here. First, utilizing the prior public official and public figure determinations would promote “the orderly and efficient administration of justice.” Kemp v. Miller, 160 Va. 280, 284, 168 S.E. 430, 431 (1933). Allowing a duplicate hearing on the same issues with the same parties, arguments, authorities, and evidence would be purely cumulative and wasteful of the parties‟ and the Court‟s resources. Second, since this Court has already ruled upon the issues of law of Plaintiff‟s statuses as a public official and a public figure, those determinations should continue to govern the same issues, as to the same parties, in subsequent filings of the same case. Cf. Aramony, 166 F.3d at 661. Finally, this Court concludes that, where, as here, there have been two filings of the same case, between the same parties and their privies, and the facts and legal authorities are the same, there is no reason to re-examine and relitigate issues of law already determined in the initial case. Cf. Steinman v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E. 684, 688 (1917) (“Where there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal.”).

Therefore, this Court will not permit relitigation of the issues of Plaintiff‟s statuses as a public official and a public figure based on cumulative facts, evidence, and arguments. If, however, either party has obtained new evidence or there is recently decided legal authority directly relevant to these issues, the parties may request leave to further litigate the matters.

Thus, this Court‟s determinations in the nonsuited case of Plaintiff‟s statuses as a public official and a public figure are incorporated into and conclusive of those issues for the present litigation, absent leave to relitigate the underlying issues based on new evidence or legal authority.

RE: Sharpe v. TWCC Holding Page 15

III. CONCLUSION For the foregoing reasons, Defendants‟ Special Plea of the Statute of Limitations is sustained only with respect to the contention that Defendants “falsely and defamatorily claimed that [Plaintiff]‟s purported views, as alleged in the editorial, are „dangerous‟ because they are „crazy – and when uttered by a commissioned officer, they take on the aura of authority.‟” The Special Plea of the Statute of Limitations is overruled with respect to other claims in the Complaint.

Defendants‟ Special Plea of Res Judicata is sustained with respect to this Court‟s summary judgment rulings, which are specifically identified above, in the nonsuited case.

However, since the public official and public figure determinations lacked finality of judgment, Defendants‟ Special Plea of Res Judicata is overruled as to those determinations.

Similarly, the public official and public figure determinations fail to meet the requirements or fit within the definition of collateral estoppel. Thus, Defendants‟ Special Plea of Collateral Estoppel is overruled with respect to the public official and public figure determinations. For the reasons noted above, the Court declines ruling on Defendants‟ Special Plea of Collateral Estoppel with respect to the summary judgment rulings in the nonsuited case.

In addition, the Court‟s determinations of the issues of Plaintiff‟s statuses as a public official and a public figure are incorporated into the present case and conclusive as to those issues, absent leave of Court to further litigate those matters.

The Court directs counsel for Defendants to promptly prepare and circulate an order incorporating by reference and effecting the rulings in this opinion.

Finally, thank you for your patience in awaiting these several decisions.

Very truly yours,

Norman A. Thomas Judge NAT/nm