Legal Research AI

Isle of Wight County v. Nogiec

Court: Supreme Court of Virginia
Date filed: 2011-01-13
Citations: 704 S.E.2d 83
Copy Citations
5 Citing Cases
Combined Opinion
PRESENT:   All the Justices

ISLE OF WIGHT COUNTY

v.   Record No. 091693


ALAN NOGIEC
                                          OPINION BY
                                JUSTICE LEROY F. MILLETTE, JR.
                                       January 13, 2011
PATRICK SMALL

v.   Record No. 091731

ALAN NOGIEC

           FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
                      Thomas S. Shadrick, Judge

     Alan Nogiec, a former director of the Parks and Recreation

Department of Isle of Wight County (County), sued the County

for breach of contract and its assistant administrator, Patrick

Small, for defamation.    A jury found for Nogiec on both claims,

and the County and Small appealed.    We granted review to

consider two questions:   first, whether the evidence on damages

was sufficient to support the jury’s verdict on the breach of

contract claim; and second, whether the statements giving rise

to the defamation claim were absolutely privileged because they

were made during a report to a subordinate legislative body,

the County’s Board of Supervisors (Board).

                           I.   BACKGROUND

     In March 2007, three months after being placed on

administrative leave, Nogiec decided to retire early from his
position as director of the County’s Parks and Recreation

Department.    At the time of his retirement, he and the County

entered into a severance agreement (Agreement).   The Agreement

provided, among other things, that “Nogiec and the County agree

to refrain from making any disparaging comments or statements,

whether written or oral, about the other or any member of the

County’s Board of Supervisors, administrators or employees.”

     In October 2006, roughly five months before Nogiec’s

retirement, the County’s museum sustained flood damage after

heavy rains.   On May 24, 2007, Small gave a report on the

efforts being undertaken to repair the museum at a televised

Board meeting.   The following exchange occurred during the

course of that report:

          BOARD MEMBER: . . . Did we not know that this
     was going to flood before?

          MR. SMALL: To answer the question directly,
     yes. The previous Parks & Recreation director had
     been advised by museum staff on more than one
     occasion . . .

          BOARD MEMBER:    Were you ever notified of that?

          MR. SMALL: No, sir. Nor was your County
     Administrator. The information had been suppressed.
     Memos to the Director of Parks and Recreation go back
     ten years advising that individual that the museum
     could and likely would flood. In fact, one of those
     memos mentions that specifically in the event of a
     sustained nor’easter, the museum would flood.

          BOARD MEMBER:    So was that written?

          MR. SMALL:     Yes, sir.


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          BOARD MEMBER:   And handed to him?

          MR. SMALL:   Yes, sir.

          BOARD MEMBER: I’m not a civil engineer but I
     can look at that and tell there is a serious
     potential for damage.

          MR. SMALL: The museum staff was aware of that.
     The Foundation was aware. And it was brought to the
     attention of the previous Parks & Recreation director
     on more than one occasion.

          BOARD MEMBER: The shame of it is the artifacts
     (inaudible) the cost of money to fix the artifacts
     involved (inaudible) has to be replaced
     (inaudible) . . .

          MR. SMALL:   It borders on negligence in my
     opinion.

     About a week after the Board meeting, the local newspaper,

The Smithfield Times, ran a front-page story on Small’s report

under the headline “Museum to be closed until 2008, Small

accuses Nogiec of ‘suppressing’ problems.”     Among other things,

the story reported that Small had told the Board that

information on the museum’s potential for flooding had been

“suppressed” by the previous director of the Parks and

Recreation Department and that, in Small’s opinion, “it

border[ed] on negligence.”

     In March 2008, Nogiec sued the County for breach of

contract and Small for defamation. 1   Nogiec alleged that Small’s


     1
       Nogiec also sued the County for defamation. That claim
was dismissed, however, when the circuit court sustained the
County’s demurrer on sovereign immunity grounds.

                                   3
statements that “[t]he information had been suppressed” and

that “[i]t borders on negligence in my opinion” were “malicious

and per se defamatory, slanderous and libelous.”    He alleged,

moreover, that they violated the Agreement’s nondisparagement

clause.   He demanded compensatory and punitive damages against

the County and Small in the amount of $500,000.

     A jury trial commenced in March 2009.    At the close of

Nogiec’s case in chief, the County and Small moved to strike

the evidence on several grounds.    They argued, among other

things, that Nogiec “ha[d] failed to introduce evidence of any

damages he . . . suffered as a result of th[e] breach” and that

Small’s allegedly defamatory statements were absolutely

privileged because they were made during “a report to a

legislative body.”   The circuit court denied the motions.

     The County and Small then presented their cases.     At the

close of all evidence, they renewed their motions to strike,

which the circuit court again denied.   The jury returned a

verdict in favor of Nogiec, awarding him $45,000 in

compensatory damages on the breach of contract claim, and

$50,000 in compensatory damages and $100,000 in punitive

damages on the defamation claim.    The County and Small then

again renewed their motions to strike and moved to set aside

the verdict.   The circuit court denied the motions and entered




                                4
judgment in accordance with the jury verdict.       These appeals

followed.

                            II.   DISCUSSION

                       A.   The County’s Appeal

     The County asserts that the circuit court erred in denying

its motions to strike and set aside the verdict because Nogiec

failed to prove damages, an essential element of his breach of

contract claim.   When considering whether a circuit court erred

in declining to strike the evidence or set aside the verdict,

we apply the following standard of review:        “ ‘whether the

evidence presented, taken in the light most favorable to the

plaintiff, was sufficient to support the jury verdict in favor

of the plaintiff.’ ”    Sunrise Continuing Care, LLC v. Wright,

277 Va. 148, 154, 671 S.E.2d 132, 135 (2009) (quoting Bitar v.

Rahman, 272 Va. 130, 141, 630 S.E.2d 319, 325-26 (2006)).

     Nogiec, as the plaintiff below, had the “ ‘burden of

proving with reasonable certainty the amount of damages and the

cause from which they resulted; speculation and conjecture

cannot form the basis of the recovery.’ ”       SunTrust Bank v.

Farrar, 277 Va. 546, 554, 675 S.E.2d 187, 191 (2009) (quoting

Shepherd v. Davis, 265 Va. 108, 125, 574 S.E.2d 514, 524

(2003)).    “Damages based on uncertainties, contingencies, or

speculation cannot be recovered.”       Shepherd, 265 Va. at 125,

675 S.E.2d at 524 (citing Barnes v. Graham Va. Quarries, Inc.,


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204 Va. 414, 418, 132 S.E.2d 395, 397-98 (1963)).    The failure

to establish damages with reasonable certainty warrants the

dismissal of a breach of contract claim.    Sunrise Continuing

Care, 277 Va. at 156, 671 S.E.2d at 136 (citing Filak v.

George, 267 Va. 612, 619-20, 594 S.E.2d 610, 614-15 (2004)).

     The evidence Nogiec presented on the damages that resulted

from the County’s breach consisted solely of his own testimony.

He first testified, over the County’s objection, about the

“financial ramifications” of his decision to retire early and

enter the Agreement.   That decision, according to his own

calculations, cost Nogiec approximately $154,000 in salary and

retirement and health insurance benefits, based on his

statutory life expectancy.

     Next, Nogiec testified about the significance of the

Agreement’s nondisparagement clause.   He testified that it was

important to him because he “spent a lot of time throughout

[his] career creating a very positive reputation.”   Nogiec then

testified that after his retirement, he started to look for new

employment, submitting a few applications in “the Parks and

Recreation field [and] a number of applications and resumes to

hotels.”

     Lastly, Nogiec testified about the negative impact that

Small’s statements had on his job search.   Specifically, he

testified that they embarrassed him as well as “damaged [his]


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reputation considerably in the community.”    Nogiec further

testified that “about 124 people, 125 people” from the

community approached him after hearing or reading the

statements and inquired: “[W]hat is this?    What’s this all

about? . . . [H]ow could that possibly be?”   When asked whether

the statements had an effect on his ability to find new

employment, Nogiec answered, “I believe [they] did.”    He also

testified that after the statements were made, he continued to

look for work for “a short period . . . probably two [months]

maybe,” but did not “receive any interviews.”   Because of his

lack of success in finding new employment, Nogiec testified

that he “felt like [his] only alternative was to create a

company . . . so that’s why [he] created” his own company.

     We agree with the County that Nogiec’s evidence on damages

was insufficient to support the jury’s verdict.   The evidence

Nogiec presented on the costs of his decision to retire early

and enter the Agreement was not relevant to the damages that

were caused by the County’s breach.    As Nogiec conceded at

trial, the roughly $154,000 in salary and benefits he forfeited

was not damages flowing from the County’s breach, but rather

his consideration for the Agreement.   Thus, because Nogiec sued

the County seeking monetary damages for breach of contract, not

rescission of the Agreement, the evidence on the costs of his




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decision to retire early and enter the Agreement cannot support

the jury’s verdict.

     The evidence that Nogiec presented on the embarrassment

and humiliation he suffered as a result of the County’s breach

likewise does not support the jury’s verdict.      “ ‘As a general

rule,’ ” we have stated, “ ‘damages for breach of contracts are

limited to the pecuniary loss sustained.’ ”       Sunrise Continuing

Care, 277 Va. at 156, 671 S.E.2d at 136 (quoting Kamlar Corp.

v. Haley, 224 Va. 699, 705, 299 S.E.2d 514, 517 (1983)).        We

have also recognized that, “ ‘absent some tort,’ damages for

‘humiliation or injury to feelings’ are not recoverable in an

action for breach of contract.”       Sea-Land Service, Inc. v.

O’Neal, 224 Va. 343, 354, 297 S.E.2d 647, 653 (1982) (quoting

D. Dobbs, Handbook on the Law of Remedies § 12.25, at 927

(1973)).   We are not alone in this view.     In fact, as the

United States Court of Appeals for the Fourth Circuit has

noted, “[c]ourts have universally rejected claims for damages

to reputation in breach of contract actions reasoning that such

damages are too speculative and could not reasonably be

presumed to have been contemplated by the parties when they

formed the contract.”   Rice v. Community Health Ass’n, 203 F.3d

283, 288 (4th Cir. 2000) (citations omitted).

     Nevertheless, Nogiec contends that it was proper for the

jury to consider his humiliation and embarrassment in


                                  8
determining the amount of damages that resulted from the

County’s breach because those were the very types of injuries

that the Agreement was meant to guard against with the

inclusion of the nondisparagement clause.   Indeed, he asserts,

the Agreement would have no value to either party if

humiliation and embarrassment could not be considered as

consequential damages.   Nogiec further claims that he can

recover for the humiliation and embarrassment caused by the

County’s breach because there are exceptions to the general

rule that tort damages are not recoverable in an action for

breach of contract.   Those exceptions, he argues, apply where,

as here, the nature of the contract is such that it is

foreseeable that a breach would likely result in emotional

disturbance.

     We decline Nogiec’s invitation to carve out an exception

to the rule that tort damages are not recoverable for breach of

contract under the circumstances of this case.   The distinction

between the damages that are recoverable in contract and tort

is made plain by the instructions given to the jury on Nogiec’s

two claims.    On the breach of contract claim, the jury was

instructed that, if it found for Nogiec, “he [was] entitled to

recover as damages all of the losses he sustained that [were] a

direct and natural result of the breach and that he . . .

proved by the greater weight of the evidence.”   There is no


                                 9
doubt that this instruction contemplates only pecuniary losses.

Thus, in order to recover on his breach of contract claim,

Nogiec had to establish the actual pecuniary losses that flowed

from the County’s breach.

     By contrast, on the defamation claim, the jury was

instructed that, if it found for Nogiec, “injury to [his]

personal and business reputation, humiliation, and

embarrassment [was to be] presumed” and that its verdict should

be for an amount that would fully compensate him for “any loss

or injury to his business”; “any insult to him including any

pain, embarrassment, humiliation, or mental suffering”; and

“any injury to his reputation.”    To allow Nogiec to recover

damages for humiliation and embarrassment on his breach of

contract claim would not only let him recover damages based

solely on speculation, see id. at 288, but it would also let

him recover the same damages twice — once on a contract theory

and once on a tort theory.   We refuse to permit such a

recovery.

     The only other evidence that Nogiec presented on damages

was his belief that Small’s statements affected his ability to

find new employment and the fact that he was not invited to

interview for any position he applied for during the two months

that followed Small’s report.   The County claims that this

evidence does not establish with reasonable certainty the


                                  10
pecuniary losses Nogiec suffered because of its breach.

Consequently, it argues, the jury was left to speculate as to

the measure of his damages.

     Nogiec counters that his testimony on the salary and

benefits he received while employed by the County and his lack

of success in securing new employment after Small’s report

“provided ample basis for a jury determination of the monetary

value of his job opportunity losses resulting from the

disparaging televised remarks.”    Moreover, he argues, the

County’s contention that the jury’s verdict was based on

speculation is without merit because, as we have stated,

“[d]amages need not be established with mathematical

certainty.”   Taylor v. Flair Property Assocs., 248 Va. 410,

414, 448 S.E.2d 413, 416 (1994).       Indeed, since he “received no

job offers,” he argues, he could not “calculate or testify to[]

the exact value of the income and opportunity losses sustained

as a consequence of the [County’s] breach.”

     We agree with the County that Nogiec failed to meet his

burden of proving with reasonable certainty the damages that

resulted from its breach.   Although it is true that Nogiec did

not need to establish his damages with “mathematical

certainty,” he was “required . . . to furnish evidence of

sufficient facts to permit the trier of fact to make an

intelligent and probable estimate of the damages sustained.”


                                  11
Id.   The record reveals that Nogiec presented no evidence on

the job opportunities he allegedly lost because of the County’s

breach.   Rather, he merely testified that he “believe[d]” that

Small’s statements had an effect on his ability to find new

employment and that he received no job interviews during the

two months after Small’s report.     And while Nogiec did testify

as to the salary and benefits he received while employed by the

County, he presented no evidence on the salaries and benefits

of the jobs he applied for.   As a result, the jury had no way

to measure the value of the job opportunities he allegedly lost

due to the County’s breach.

      As we recently reiterated in SunTrust Bank, “[e]stimates

of damages based entirely upon . . . assumptions ‘are too

remote and speculative to permit “an intelligent and probable

estimate of damages.” ’ ”   277 Va. at 555, 675 S.E.2d at 191

(2009) (quoting Vasquez v. Mabini, 269 Va. 155, 159, 606 S.E.2d

809, 811 (2005)).   In that case, trust beneficiaries alleged

that the trustee had breached its fiduciary duty when it sold

trust property appraised at $1.1 million for $350,000.     Id. at

551, 675 S.E.2d at 189.   After a bench trial, the circuit court

determined that the trustee had breached its fiduciary duty and

awarded damages to the beneficiaries.     Id. at 552-53, 675

S.E.2d at 190.   We reversed, holding that the circuit court

erred in awarding the beneficiaries damages because they failed


                                12
to establish that there was a buyer willing to purchase the

property for $1.1 million.     Id. at 556-57, 675 S.E.2d at 192.

     Just as the beneficiaries in SunTrust Bank failed to

present evidence of a willing buyer, Nogiec failed to present

evidence of a willing employer — that is, he failed to show an

employer who would have hired or even interviewed him but for

Small’s statements.   Without such evidence on the job

opportunities Nogiec allegedly lost and their value (i.e.,

salaries and benefits), there was simply no way for the jury to

make an “intelligent and probable estimate” of the damages he

sustained as a result of the County’s breach.    Accordingly, the

evidence Nogiec presented on the job opportunities he allegedly

lost cannot support the jury’s verdict.

     Because the evidence Nogiec presented on the damages he

sustained was insufficient to support the jury’s verdict on his

breach of contract claim, we hold that the circuit court erred

in denying the County’s motions to strike and set aside the

verdict on that claim.

                         B.   Small’s Appeal

     Small claims that the circuit court erred in denying his

motions to strike and set aside the verdict, since the

statements giving rise to Nogiec’s defamation claim were

absolutely privileged.   This is so, Small maintains, because

they were made while he was a witness in a legislative


                                  13
proceeding, the Board meeting.   In response, Nogiec raises two

principal arguments.   First, he contends that Small waived

absolute privilege by failing to plead it as an affirmative

defense in his responsive pleadings.   Second, Nogiec asserts

that, even if Small did not waive absolute privilege, it does

not apply here because the Board meeting was not a legislative

proceeding, and because the statements were unrelated to the

issue before the Board — the status of the museum repairs.

       In the law of defamation, there are two types of

privileges — absolute and qualified.   “[T]he maker of an

absolutely privileged communication is accorded complete

immunity from liability even though the communication is made

maliciously and with knowledge that it is false.”    Lindeman v.

Lesnick, 268 Va. 532, 537, 604 S.E.2d 55, 58 (2004).      “Cases in

which absolute privilege appl[ies] are not numerous and they

may be divided into three classes, namely:   Proceedings of

legislative bodies; judicial proceedings; and communications by

military and naval officers.”    Story v. Norfolk-Portsmouth

Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d 668, 669 (1961).

       “Qualified privilege,” on the other hand, “exists in a

much larger number of cases.”    Id. at 590, 118 S.E.2d at 670

(internal quotation marks omitted).    Indeed, we have stated

that




                                 14
     [i]t extends to all communications made bona fide
     upon any subject-matter in which the party
     communicating has an interest, or in reference to
     which he has a duty to a person having a
     corresponding interest or duty; and the privilege
     embraces cases where the duty is not a legal one, but
     where it is of a moral or social character of
     imperfect obligation.

Id. (internal quotation marks omitted).   If a communication is

entitled to a qualified privilege, then there is no inference

of malice arising from its publication, but rather “the onus is

cast upon the person claiming to have been defamed to prove the

existence of malice.”   Id. at 590-91, 118 S.E.2d at 670.

     In this case, the circuit court held that Small’s

statements were entitled to a qualified privilege, since “[h]e

[was] an administrator of the county who [was] reporting to the

Board of Supervisors, the controlling authority for the

county.”   Small submits that this ruling was in error because,

as a witness at a legislative proceeding, his statements were

entitled to an absolute privilege.   Whether an absolute or

qualified privilege applies under the circumstances of this

case “is a question of law that, like all questions of law, we

review de novo.”   Hancock-Underwood v. Knight, 277 Va. 127,

131, 670 S.E.2d 720, 722 (2009) (citation omitted).

     Although we have discussed absolute privilege in the

judicial context on numerous occasions, see, e.g., Lindeman,

268 Va. at 538, 604 S.E.2d at 58-59 (declining to extend



                                15
absolute privilege to mere potential litigation); Elder v.

Holland, 208 Va. 15, 22, 155 S.E.2d 369, 374-75 (1967) (holding

that a communication made by a witness at a hearing before the

Superintendent of the State Police was not entitled to an

absolute privilege because the safeguards that surround a

judicial proceeding were not present), we have never done so in

the legislative context.   Hence, whether a communication made

by an assistant county administrator to a member of a county’s

board of supervisors during a board meeting is absolutely

privileged is a question of first impression in this Court.

     Small urges us to adopt the Restatement’s approach to

applying absolute privilege in the legislative context.    Under

that approach, “[a] witness is absolutely privileged to publish

defamatory matter as part of a legislative proceeding in which

he is testifying or in communications preliminary to the

proceeding, if the matter has some relation to the proceeding.”

Restatement (Second) of Torts § 590A (1977).   The Restatement

clarifies that legislative proceedings include not only those

held by the “highest legislative body of a State,” but also

those held by “subordinate legislative bodies to which the

State has delegated legislative power, such as a city council

or county board.”   Id. § 590, cmt. c.   It also states that “the

absolute privilege of witnesses in legislative hearings and

other legislative proceedings is similar in all respects to


                                16
that of witnesses in judicial proceedings.”   Id. § 590A,

cmt. a.

     As Small notes, the Restatement’s approach to applying

absolute privilege in the legislative context is similar to the

approach we have taken to applying the privilege in the

judicial context.   We have stated that if a “communication is

made in . . . a judicial proceeding, it need only be relevant

and pertinent to the case to be protected by the privilege.”

Lindeman, 268 Va. at 537, 604 S.E.2d at 58.   “The reason for

the rule of absolute privilege in judicial proceedings,” we

have explained, “is to encourage unrestricted speech in

litigation.”   Donohoe Construction Co. v. Mount Vernon Assocs.,

235 Va. 531, 537, 369 S.E.2d 857, 860 (1988) (citing Watt v.

McKelvie, 219 Va. 645, 651, 248 S.E.2d 826, 829 (1978)).    We

have also noted that “[t]he public interest is best served when

individuals who participate in law suits are allowed to conduct

the proceeding with freedom to speak fully on the issues

relating to the controversy.”   Id. (quoting Watt, 219 Va. at

651, 248 S.E.2d at 829)).

     Just as in judicial proceedings, we think that absolute

privilege in legislative proceedings serves the public

interest.   In particular, it encourages individuals who

participate in such proceedings to speak freely on issues

relating to “the operation of the government.”   Krueger v.


                                17
Lewis, 834 N.E.2d 457, 464 (Ill. Ct. App. 2005).      That public

interest, however, must be balanced against “the right of an

individual to enjoy his reputation free from defamatory

attacks.”   Id.    We therefore believe that application of the

privilege should be limited to proceedings before a legislative

body in which the public interest in free speech outweighs the

potential harm to an individual’s reputation.      In our view,

this only occurs when the legislative body is acting in its

legislative capacity — i.e., when it is creating legislation —

rather than in its supervisory or administrative capacity.

     The facts of this case present two central issues.      The

first is whether absolute privilege should be afforded not only

to the General Assembly, but also to subordinate legislative

bodies to which it has delegated legislative power, such as

boards of supervisors.    The second is whether all proceedings

before subordinate legislative bodies fall under the umbrella

of legislative proceedings to which the attachment of the

privilege serves the public interest.

     Our resolution of the second issue determines the outcome

of this case.     The General Assembly has granted certain powers

to county boards of supervisors. 2     The broadest of these powers


     2
       In discussing the powers conferred on the Isle of Wight
County Board of Supervisors by the General Assembly, Small and
Nogiec cite Code § 15.2-403. That section, however, is not
applicable here because the County has the traditional form of

                                  18
is a general police power.   Code § 15.2-1200.   In accordance

with that power, a county, through its board of supervisors,

“may adopt such measures as it deems expedient to secure and

promote the health, safety and general welfare of its

inhabitants which are not inconsistent with the general laws of

the Commonwealth.”   Id.   Not all powers given to boards of

supervisors, however, are legislative in nature; some are

supervisory or administrative.   Under Code § 15.2-1409, for

example, boards of supervisors “may make such investigations

relating to its government affairs as it deems necessary.”

And, pursuant to Code § 15.2-1230, they “may require monthly

financial reports from any officer or office of the county.”

     Assuming, without deciding, that absolute privilege is

afforded to subordinate legislative bodies, the creation of

legislation is the nexus that supports the application of the

privilege.   Absolute privilege therefore does not attach to

communications made by participants in proceedings conducted by

a board of supervisors that do not concern the creation of

legislation.

     Absolute privilege is an affirmative defense.    See Chaves

v. Johnson, 230 Va. 112, 121, 335 S.E.2d 97, 103 (1985); see



government, not the optional county board form. Report of the
Secretary of the Commonwealth 471, http://www.soc-apps.state.
va.us/Bluebook/PDFs/10A_Counties.pdf (last visited Dec. 17,
2010).

                                 19
also Restatement (Second) of Torts § 613(2) (“In an action for

defamation the defendant has the burden of proving, when the

issue is properly raised, the presence of the circumstances for

the existence of a privilege to publish the defamatory

communication.”).   Accordingly, Small bore the burden of

establishing that the statements giving rise to Nogiec’s

defamation claim were absolutely privileged.   The record

reflects that Small presented no evidence to meet this burden,

but rather relied on the evidence produced by Nogiec.    That

evidence does not demonstrate that the Board was acting in a

legislative capacity when Small gave his report.   On the

contrary, it shows that the Board was acting in a supervisory

or administrative capacity.   The Board had convened to receive

a report on the efforts being undertaken to repair County

property (i.e., the museum), not to create legislation.     Thus,

because the Board was not acting in a legislative capacity when

it received Small’s report, its meeting was not a legislative

proceeding to which the public interest supports the attachment

of an absolute privilege.   We therefore conclude that Small’s

statements were not absolutely privileged.

     While Small’s statements were not entitled to an absolute

privilege, they were entitled to a qualified privilege because,

as an assistant administrator for the County, Small had a duty

to report the status of the museum repairs to the Board.    We


                                20
believe that under the circumstances of this case, a qualified

privilege afforded Small sufficient protection from liability

for defamation because the statements, whether compelled or

volunteered, were only actionable if Nogiec was able to prove

that they were made with malice.     Hence, the circuit court

properly submitted to the jury the issue of whether the

statements were made with malice.    Accordingly, we hold that

the circuit court did not err in denying Small’s motions to

strike and set aside the verdict on Nogiec’s defamation claim.

     Because we conclude that absolute privilege does not apply

under the circumstances of this case, we need not address

Nogiec’s argument that Small waived it by failing to plead it

as an affirmative defense in his responsive pleadings.

                         III. CONCLUSION

     The circuit court erred in denying the County’s motions to

strike and set aside the verdict on Nogiec’s breach of contract

claim.   We therefore reverse the circuit court’s judgment in

favor of Nogiec and enter final judgment in favor of the County

on that claim.   The circuit court, however, did not err in

denying Small’s motions to strike and set aside the verdict on

Nogiec’s defamation claim.   We therefore affirm the circuit

court’s judgment in favor of Nogiec on that claim.

                 Record No. 091693 – Reversed and final judgment.
                 Record No. 091731 — Affirmed.



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