Abrupt dismissal for $30M suit?

Defendant's attorney argues there's no basis for defamation claims

By Ben Orcutt - borcutt@nvdaily.com

FRONT ROYAL -- A $30 million defamation lawsuit filed against the town and three town councilmen could be dismissed somewhat abruptly if a judge agrees there is no cause for action, according to the attorney for the defendants.

The lawsuit was filed July 15 by David W. Silek, of the Manassas law firm of Ours & Silek, in Warren County Circuit Court on behalf of SolAVerde LLC, Donald F. Poe and Gregory A. Horton.

In addition to the town, defendants in the lawsuit are Vice Mayor Chris W. Holloway and Councilmen Carson C. Lauder Jr. and Thomas H. Sayre.

In her Aug. 6, response, Julia B. Judkins of the Fairfax law firm of Trichilo, Bancroft, McGavin, Horvath & Judkins, who is representing the defendants through the town's membership in the Virginia Municipal League, argued there is no basis for Silek's claim and therefore it should be dismissed.

In his filing, Silek says Horton and Poe are partners in SolAVerde. Horton is the owner of Arctic Air Refrigeration Inc. in Front Royal and Poe operates a local construction business, Silek says.

The plaintiffs were first defamed, Silek says, when a member of the Town Council leaked confidential documents to The Northern Virginia Daily in April.

The documents included an April 8 confidential memo from Town Attorney Thomas R. Robinett to the council. In the memo, Robinett refers to "Standard Energy/Solar/SolAVerde" offering 200 jobs and $1.2 million in incentives that were not in a bid for construction of a solar energy farm.

Silek said Thursday that if Robinett had not named SolAVerde in the April 8 memo, the lawsuit would not have been filed. Robinett did not wish to make any comment.

SolAVerde did not submit a bid on the solar project, Silek said. Standard Energy LLC's proposal was the top-ranked bid by the town's consultant.

In addition to not knowing who leaked the documents to the Daily, Judkins says in her response that both the town and the three councilmen have sovereign immunity under the law and therefore cannot be sued.

"If any portions of her demurrer [objection] are sustained, we will request leave to file an amended complaint, and if her demurrer is not sustained, we'll ask for judgment because they did not file a plea at bar together with the demurrer," Silek said Thursday.

Judkins said Silek's reference to a plea at bar is "interesting."

"Plea at bar is filed when it is anticipated that evidence may be needed or you'll request an evidentiary hearing," she said. "You can still reach that issue [sovereign immunity] by demurrer if the facts on the face of the pleading are sufficient for the court to look at it and say, 'Hey, I don't need evidence. It's clear these people have sovereign immunity.' That's the difference between the two pleadings."

Judkins said if the court were to overrule her objection to Silek's complaint, partially or in its entirety, she would still be able to file "other responsive pleadings."

It may not be until the end of September before the case is set for hearing, Judkins said.

However, she added that if the court sustains her objection to the complaint, she does not see how Silek could successfully amend it to "state a valid cause of action" and she will argue against granting the plaintiffs the opportunity to do so.

"I can't predict with total accuracy all the time what judges are going to do," Judkins said. "But, honestly, I see a huge argument for [the court] not granting leave to amend in this particular case. It's not to say it won't happen, but that doesn't mean we don't live to fight another day. We make the same arguments again. [But], I don't see how he can fix these problems."

Also among the leaked documents was a memo from Megan C. Rahman, an attorney with the Richmond law firm of Troutman Sanders who specializes in white-collar crime.

She notes that background provided by Robinett indicates that one of the three finalists in the bidding for the solar firm project "secretly offered incentives to the Town Manager [J. Michael Graham] that were not contained in its written response" to the request for proposals.

While it appears that Graham did not accept the offer, Rahman says that based on information provided by Robinett, it could be construed as a bribe.

Graham has maintained that he was never offered a bribe.

According to Silek's lawsuit, the plaintiffs also were defamed when Holloway and Lauder inquired of Robinett on March 30 if the "incentives" Graham mentioned to the council on March 29 constituted a bribe being offered.

Holloway, Lauder and Sayre also defamed his clients when they voted publicly for a state police investigation of the allegation, Silek adds.