You may have heard that truth is a complete defense to a claim of defamation. That’s essentially true, but here in Virginia, it’s more accurate to say that a plaintiff must prove falsity as part of his case in chief. Whether a statement claimed to be defamatory is true or false is normally an issue reserved for trial to be determined by a jury. That’s because it’s an issue of fact (as opposed to a question of law, which the judge can decide without deference to the jury). This means that in most cases, a defendant won’t be able to get a defamation claim dismissed on demurrer (i.e., thrown out at the very beginning of the litigation process, without the need for a trial) on the basis that the alleged defamatory statement is true and therefore not actionable. Trials are usually necessary to determine whether the statement is, in fact, true. Sometimes, however, the truth of the allegedly defamatory statement is apparent from the face of the pleadings. When this is the case, trial courts have been known to sustain demurrers.
A recent example comes from the County of Dinwiddie, Virginia (population 28,000). The facts of Dennis F. Harrup III v. Collison F. Royer et al. go something like this. Dennis Harrup owns Harrup Real Estate, LLC (“HRC”). HRC took out a loan of roughly one million dollars with Blue Ridge Bank, secured by a deed of trust (i.e., mortgage) establishing liens on several properties located throughout Richmond, Petersburg, and Lancaster. The deed of trust contained a provision restricting HRC’s right to sell the secured properties. In contravention of this restriction, HRC managed to sell one of the houses. A title search, for reasons that aren’t clear, did not reveal the liens held by Blue Ridge Bank. In the course of the sale, Mr. Harrup signed a “no financing agreement” indicating that he owned the house personally and that there were no liens or encumbrances against it. The documents clearly showed that both of these assertions were false–the property was owned by HRC, not Harrup personally, and there was a substantial lien against it held by Blue Ridge Bank.