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Attorney: Revived SolAVerde suit still groundless

By Alex Bridges -- abridges@nvdaily.com

FRONT ROYAL -- A revived defamation claim against the town and former and current councilmen filed for SolAVerde lacks standing, defense papers state.

The attorney for Front Royal, Councilman Thomas H. Sayre and former Councilmen Chris W. Holloway and Carson Lauder Jr. filed a demurrer and a motion to strike in the case on Thursday in Warren County Circuit Court. Fairfax attorney Julia B. Judkins represents the defendants. Manassas attorney David W. Silek represent the plaintiffs. The defendants asked the court to appoint retired Judge Paul M. Peatross Jr., the same judge who ruled against the plaintiffs in the first complaint, to hear the revived case.

Front Royal asks in the filings that a judge strike SolAVerde's refiled complaint as to any and all allegations brought against the town.

The revived complaint differs little from the original lawsuit and still seeks $40 million in damages from the defendants. Donald F. Poe, Gregory A. Horton and their company, SolAVerde, LLC, gave up on their claim in December after a judge ruled against the plaintiffs earlier in the year.

The complaint alleges the defendants made defamatory statements while town officials and the business partners discussed a proposal to build a solar farm at the former Avtex Superfund site as a way of making more electrical power, creating jobs and increasing tax revenue. The lawsuit claims Holloway and Lauder defamed the plaintiffs when they asked former Town Attorney Thomas R. Robinett on March 20, 2010, if he considered incentives offered with the project a bribe to former Town Manager Michael J. Graham. The complaint states Graham denied ever receiving a bribe.

The defense uses the judge's ruling and the subsequent dropping of the suit to argue that the plaintiff's refiled complaint lacks standing. The motion to strike filed for the defense states the court sustained their previous demurrer to all claims in the original complaint. The judge also denied the plaintiffs' request for leave to amend their original complaint except under certain conditions which they did not meet, accordingt to the motion to strike. The court dismissed with prejudice any claims against Front Royal not included in the complaint for which the defense sought to non-suit, the motion states.

The court also ruled previously that Front Royal qualified for sovereign immunity because it had engaged in a governmental function, according to the motion.

"Despite the court's prior rulings and dismissal with prejudice of the case as to Front Royal, the plaintiffs have not only re-filed a complaint raising the same allegations against Front Royal, but also realleged and incorporated all of the allegations set forth in the original complaint, including all attached exhibits which is improper," the motion states.

The complaint in the refiled lawsuit fails to state a claim or cause of action for which relief may be granted against any of the defendants for defamation, according to the demurrer. The demurrer states the court ruled previously that the statements contained in a memorandum prepared by the town attorney were not defamatory or actionable, despite allegations that one or more of the three councilmen leaked the document to a local newspaper.

A judge issued an order to non-suit the original complaint and found the statements upon which the plaintiffs based their defamation claims were not defamatory, according to the demurrer. No basis exists for imposing liability on any of the defendants for tortious interference claims.

"It is clear from the facts alleged and exhibits deemed included and attached to the complaint that the communications which form the basis of the plaintiffs' claims of defamation were made in good faith and related to the subject matter in or about which the indviduals communicating had a lawful interest, conferred statutory duty or power, and/or owed or had a legal duty to address, as they involved matters of public or general concern and matters which fell within their job duties, powers conferred by law, or contacted for information or advice," the demurrer states.

The town's charter and the constitutions of Virginia and the United States also entitle the defendants to legislative immunity, privilege and protection from suit under the speech and debate clauses, according to the demurrer.

The complaint fails to state a claim or cause of action for which the court may grant relief on any theory of tortious interference with a business relationship or contract since the filing doesn't sufficiently allege the specific elements of a tort, according to the demurrer. Likewise the facts stated and exhibits attached don't support the claim, the demurrer states.

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