Government Micro Resources, Inc. v. Jackson

Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ.,
and Compton, S.J.

GOVERNMENT MICRO RESOURCES,
INC., ET AL.

v. Record No. 050943

ALAN W. JACKSON
OPINION BY JUSTICE ELIZABETH B. LACY
January 13, 2006
ALAN W. JACKSON

v. Record No. 050937

GOVERNMENT MICRO RESOURCES,
INC., ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge

Alan W. Jackson sued his former employer Government Micro

Resources, Inc. (GMR) and its Chairman of the Board, Humberto

Pujals, Jr., for breach of contract and defamation.1 The jury

returned a verdict in favor of Jackson awarding him $200,500

in compensatory damages on his breach of contract claim and

$5,000,000 and $1,000,000 as compensatory and punitive

damages, respectively, on his defamation claim. The trial

court granted the defendants' post-trial motion for

remittitur, reducing the breach of contract award to $112,500,

the defamation compensatory damages to $1,000,000, and the

punitive damages to the statutory maximum of $350,000. Code

§ 8.01-38.1.
 Jackson, GMR, and Pujals appealed the trial court's

judgment and we have consolidated the appeals for our

consideration. GMR and Pujals ask us to reverse the judgment

of the trial court. They assert that the trial court erred in

failing to strike Jackson's defamation claim and that the

evidence did not support a finding of actual malice necessary

for an award of punitive damages or to overcome the qualified

privilege they contend attached to the alleged defamatory

statements. Jackson seeks restoration of the jury's

compensatory damage award for his defamation claim.

For the reasons stated below, we conclude that Jackson's

defamation claim was not opinion, was timely and properly pled

and proven; that actual malice was shown by clear and

convincing evidence; and that in holding that the compensatory

damage award was excessive, the trial court did not consider

factors in evidence relevant to that damage award.

FACTS

The following facts are relevant to both appeals and we

recite them in the light most favorable to Jackson, the party

prevailing in the trial court. City of Lynchburg v. Brown,

270 Va. 166, 168, 613 S.E.2d 407, 408 (2005).

1
Jackson also included counts of actual and constructive
fraud which the trial court struck.

2
 Following his discharge from the army, Jackson served

eight years with the National Security Agency where he

qualified for top secret and "specially comparted information"

security clearances following satisfactory completion of

multiple "full lifestyle polygraph" examinations. Upon

leaving the government, he worked for various technical

systems companies as senior officer or chief executive officer

developing a reputation for successfully turning financially

distressed business units into profitable entities and

expanding the companies.

In 2001, GMR, a technology resale and services company,

sought to increase its services business. To accomplish this

goal, GMR recruited Jackson to serve as president and chief

executive officer because of his connections with the federal

government, his top secret security clearances, and his

extensive experience with technology services in both the

public and private sectors.

Jackson began work at GMR on July 9, 2001. Within a

short period, Jackson realized the company's financial

situation differed significantly from what he was led to

believe when he accepted the position. For example, GMR's

line of credit was significantly reduced because Pujals caused

a transfer of properties from the company to himself by using

the company's line of credit to satisfy the mortgages on the

3
properties. Jackson also learned of a $1.1 million loss GMR

sustained in the first six months of 2001, a $400,000

accounting error reported by the chief financial officer in

August, and a $1.4 million discrepancy between the company's

listed inventory and that which it actually held.

In October 2001, as part of its effort to increase its

services business, GMR began discussions with Seisint, Inc.

(Seisint), a technology company with a super computer it

wished to market to the federal government. Seisint did not

have contacts with the federal government, but GMR could

provide those contacts through Jackson. The Seisint

executives, Henry E. Asher and Daniel W. Latham, worked

directly with Jackson. Eventually, GMR and Seisint executed a

memorandum of understanding detailing GMR and Seisint's

agreement to jointly market Seisint's super computer to the

federal government.

The remainder of 2001 and the early months of 2002 did

not bring a significant change in GMR's financial status. On

March 5, 2002, GMR terminated Jackson's employment for cause.

The termination letter accused Jackson of "gross

mismanagement" of GMR's finances. Pujals admitted, however,

that when he wrote the letter he did not have "a specific

amount of money in mind" as a basis for that statement.

4
 According to Asher, Pujals called Asher either the day

Jackson was terminated, or the next day, and told Asher that

Jackson "mismanaged the company and cost him a tremendous

amount of money." Latham testified that at a meeting in April

2002 between GMR and Seisint executives Pujals initiated the

subject of Jackson's firing and said that "Jackson had been

removed from his job because he lost $3 million." Pujals

testified that at the April meeting he had responded to

Asher's question regarding the details of Jackson's

termination by saying the company, and not Jackson, lost $3

million, which resulted in Pujals having to let Jackson go.

Pujals admitted that Jackson did not lose $3 million for GMR

and that "it would be false if someone said that."

Following his termination, Jackson entered employment

discussions with Seisint. Because of the information Asher

received from Pujals, Seisint, at Asher's direction did not

hire Jackson for a management position but rather engaged him

as a sales representative and consultant from March 6, 2002

until December 31, 2002. On January 1, 2003, Seisint hired

Jackson as senior vice-president of government programs, which

Jackson did not consider a management position.

Pujals was upset when he heard that Jackson was working

for Seisint because Jackson would not have known about Seisint

if not for GMR. Particularly, Pujals said: "And to find out

5
– and to find out that after we fired him for cause, that he's

already employed immediately after and he has already a

relationship right after was very, very – a very, very mean

thing for him to do."

I. The Defamatory Statements

The jury was instructed to return a verdict in favor of

Jackson if it found that Jackson proved either of the

following two statements:

Mr. Pujals called Hank Asher within a few
days of terminating Mr. Jackson (March 5,
2002). Mr. Pujals told Mr. Asher that Mr.
Jackson had mismanaged GMR, had lost what
Mr. Asher perceived or recalled as an
exorbitant amount of money, and that Mr.
Pujals had to let him go as a result; or

In April 2002, Mr. Pujals told Daniel
Latham, President of Homeland Defense
[and] Seisint, Inc., and/or Mr. Asher,
founder and CEO of Seisint, Inc., that he
fired Al Jackson because Mr. Jackson lost
$3 million.

GMR2 contends that the first statement was not contained in

Jackson's pleadings and was not timely asserted, that both

statements were opinion and therefore could not be the subject

2
GMR and Pujals filed a joint appeal. Therefore,
throughout our discussion of these appeals, "GMR" will refer
to Pujals and GMR collectively unless the context requires
otherwise.

6
of a defamation claim, and that Jackson did not prove that GMR

uttered either statement in haec verba or with malice.3

A. Pleading the Defamation Claim

Whether Jackson failed to plead and timely assert the

first statement, as GMR contends, depends on whether that

statement was included in the description of the alleged

defamation contained in the motion for judgment and a

subsequent bill of particulars. A motion for judgment

asserting a claim for defamation that does not recite all the

specifics of the alleged defamatory statement, although not

good pleading, may nevertheless state a "substantial cause of

action imperfectly." Federal Land Bank v. Birchfield, 173 Va.

200, 217, 3 S.E.2d 405, 411 (1939). The particulars of the

allegedly defamatory statement may be supplied in a bill of

particulars. Id. However, if, in supplying such specifics, a

litigant identifies an allegedly defamatory statement that was

not reasonably included in the original pleadings, such a

statement constitutes a separate claim of defamation and must

comply with Code § 8.01-247.1, the one-year statute of

limitations for defamation claims. See id. at 217-19, 3

S.E.2d at 411-12.

3
GMR's argument that the evidence was insufficient to
support a finding of actual malice in this assignment of error
is based on its assertion that the statements were entitled to

7
 In this case, Jackson's motion for judgment recited that

Humberto ("Tico") Pujals and GMR made false and
defamatory statements to executives of Seisint,
Inc., stating that Mr. Jackson lost $3 million
for GMR and was terminated as a result.

In his bill of particulars, Jackson contended that "[o]n or

around" April 12, 2002, at a business meeting between certain

identified and unidentified Seisint executives and certain

representatives of GMR, Pujals stated that in 2001 Jackson

lost either "a significant amount" of money for GMR or

"enormous amounts" of money for GMR. The bill of particulars

also recited that "[o]n or around" April 12, Pujals "made the

statement to a Seisint executive (who has requested not to be

named) that Mr. Jackson 'lost $3 million for GMR last year.' "

On October 8, 2004, Jackson filed a supplemental answer

to GMR's first set of interrogatories based on the de bene

esse depositions of Asher and Latham taken by GMR September

20, 2004 and July 13, 2004, respectively.4 In that answer,

Jackson stated that Pujals called Asher "either the day, or

within a few days of terminating Mr. Jackson" and told Asher

that Jackson had "mismanaged" GMR, that Jackson lost what

a qualified privilege. Qualified privilege is addressed
infra.
4
Jackson's supplemental answer included five alleged
defamatory statements. The trial court excluded three
statements and they are not at issue on appeal. Therefore, we
only address the October 8 interrogatory answer as it relates
to the two statements made by Pujals.

8
Asher "perceived or recalled" to be an "exorbitant amount of

money," and that Pujals "had to let" Jackson go. The answer

also recited that Pujals told Asher and Latham that he fired

Jackson because Jackson "lost $3 million."

GMR argues here, as it did in the trial court, that the

first statement submitted to the jury involved a March phone

call to Asher, which was not pled in either the motion for

judgment or bill of particulars but was a new allegation of

defamation based on statements first identified in the October

8 interrogatory answer. Because this statement was not pled

within the one-year limitations period, GMR asserts that it

was untimely and should not have been presented to the jury.

In rejecting GMR's contention, the trial court concluded

that the information contained in the October 8 interrogatory

answer was "essentially the same allegation" as the statements

alleged in the motion for judgment and the bill of particulars

and did not constitute a new or separate defamation claim. We

find no error in the trial court's ruling.

The defamation claim in the motion for judgment and the

bill of particulars was that two statements were made to

Seisint executives at an indeterminate time around April 12,

2002, attributing the loss of large amounts of money to

Jackson's management of GMR. The October 8 interrogatory

answer named a previously "unidentified" Seisint executive to

9
whom one of the statements was made and identified the

location and time frame of one of the statements. The

information provided in the October 8 interrogatory answer,

the motion for judgment, and the bill of particulars was

consistent with the statements provided to the jury as

Jackson's defamation claim. Therefore, the first statement

was pled within the limitations period.

B. Opinion

GMR next argues that the statements at issue were matters

of opinion and thus could not be the basis of a defamation

claim. According to GMR, the terms "exorbitant" and

"mismanaged" contained in the allegedly defamatory statements

submitted to the jury represented Pujals' subjective judgments

and were expressions of opinion only.5

Statements that express only the speaker's opinion and

not matters of fact are not actionable as defamation because

such statements cannot be shown to be false. Fuste v.

Riverside Healthcare Ass'n, Inc., 265 Va. 127, 132, 575 S.E.2d

858, 861 (2003). "Statements that are relative in nature and

depend largely upon the speaker's viewpoint are expressions of

opinion." Id. Whether a statement is a statement of fact or

5
GMR also complains that the word "tremendous" reflects
opinion, not fact. However, although the jury heard testimony
that GMR's financial losses were "tremendous," that word does

10
opinion is a matter of law and is reviewed de novo on appeal.

Jordan v. Kollman, 269 Va. 569, 576, 612 S.E.2d 203, 206-07

(2005).

In American Communications Network, Inc. v. Williams, 264

Va. 336, 341-42, 568 S.E.2d 683, 686 (2002), we held that in

considering whether a statement was one of fact or opinion, we

do not isolate parts of an alleged defamatory statement.

Rather, the alleged defamatory statement must be considered as

a whole to determine whether it states a fact or non-

actionable opinion.

The alleged defamation in this case is that Jackson's

mismanagement caused GMR to lose money in 2001 which, in turn,

was the basis for Jackson's termination. Whether a company's

financial loss is the result of mismanagement is a fact that

can be proven. Indeed, in this case, the parties introduced

substantial evidence regarding the cause or causes of GMR's

financial losses. The evidence also established that

government contracting was a very competitive business and

success was often based on contacts with "the appropriate

people." The trial court observed that the evidence showed

that Pujals' statements were made as a matter of fact "with

the intent to defame Mr. Jackson so that he would not be able

not appear in the statements submitted to the jury and we need
not include it in our discussion.

11
to go to Seisint and get employment with them and cut GMR out

of the picture."

Accordingly, we conclude that the trial court did not err

in ruling that the alleged defamatory statements were not

opinion.

C. Proof of Defamation

To prevail on a defamation claim, a "sufficient number"

of the defamatory words must be proven "to make out a good

cause of action. . . . They must be substantially proven as

alleged." Birchfield, 173 Va. at 215, 3 S.E.2d at 410. GMR

contends that because neither Asher nor Latham could recall

the exact words of the first or second statement,

respectively, Jackson failed to carry his burden of proof and

the trial court should have struck the defamation claim.

However, Asher and Latham were not the only persons who

testified as to the content of the defamatory statements.

Jackson testified, "in the telephone call with Dan

Latham, he told me that . . . Mr. Pujals said I had lost $3

million for GMR, and that's why I had been fired." Jackson

also testified that Asher told Jackson that he understood

Jackson "lost $3 million for GMR" and that is why Jackson was

fired. Pujals testified that he told Asher and Latham that

the company lost $3 million dollars and "we had to let Jackson

go."

12
 Latham testified that Asher was present when Pujals told

Latham that Jackson was fired because Jackson had "lost $3

million," and that $3 million "was a large sum of money for a

company the size [of] GMR." Asher testified that he had one

and possibly two conversations with Pujals in which Pujals

told Asher that Jackson had "mismanaged the company" and cost

the company "tremendous" amounts of money.

This evidence is sufficient to satisfy the standard that

the defamatory words "must be substantially proven as

alleged." Birchfield, 173 Va. at 215, 3 S.E.2d at 410.

Finally, GMR complains that the evidence was insufficient

to support a finding of actual malice.6 Actual malice is also

required as a basis for awarding punitive damages. GMR has

assigned error to the trial court's failure to strike the

punitive damage award and, therefore, we will address GMR's

arguments regarding the sufficiency of the evidence of actual

malice in the following discussion which addresses that

assignment of error.

II. Proof of Actual Malice

GMR also assigns error to the trial court's failure to

strike Jackson's claim for punitive damages asserting Jackson

6
In conjunction with this assertion, GMR argued on brief
that the trial court erred in finding that the statements were
defamatory per se; however, GMR did not assign error to this
holding and consequently we do not address it. Rule 5:17(c).

13
failed to provide clear and convincing proof of actual malice.

GMR contends that the test we have established for such proof

requires "much more than mere falsity" to sustain a finding of

actual malice. Citing Jordan, 269 Va. at 580, 612 S.E.2d at

209, and The Gazette, Inc. v. Harris, 229 Va. 1, 50, 325

S.E.2d 713, 746 (1985), GMR asserts that this Court has

determined that to establish actual malice, a plaintiff must

produce clear and convincing proof that there were reasons for

a defendant to doubt the veracity of the defamatory statement

or that all judgment and reason were abandoned and no

objective basis existed for the defamatory charge. GMR

misstates the law and misapplies these cases.

To recover punitive damages in a defamation case, the

plaintiff must prove actual malice by "clear and convincing

evidence that [the defendant] either knew the statements he

made were false at the time he made them, or that he made them

with a reckless disregard for their truth." Ingles v. Dively,

246 Va. 244, 253, 435 S.E.2d 641, 646 (1993) (emphasis added).

A plaintiff seeking punitive damages can prevail by

establishing either circumstance by clear and convincing

evidence.

In both cases cited by GMR, the second circumstance –

reckless disregard for the truth – was relied upon to show

actual malice. In Jordan, the defendant claimed that he did

14
not know that the statements at issue were false; rather, he

believed the statements to be true. 269 Va. at 580-81, 612

S.E.2d at 209. Similarly in The Gazette, the Court assumed

without deciding that the plaintiff failed to prove that the

defendant knew the defamatory statements were false. 229 Va.

at 49, 325 S.E.2d at 746. These cases are not relevant to the

instant case because Jackson predicates his case of actual

malice on Pujal's knowledge that his defamatory statements

were false.

In considering GMR's assertion that Jackson did not

provide clear and convincing evidence of actual malice, we

independently review the record, The Gazette, 229 Va. at 19,

325 S.E.2d at 727, and we review the facts in the light most

favorable to the party prevailing below. Jordan, 269 Va. at

577, 612 S.E.2d at 207. The record in this case contains

clear and convincing evidence that at the time Pujals made the

statements ascribing GMR's loss of large amounts of money in

2001 to Jackson, he knew those statements were false.

Pujals himself testified that he knew Jackson did not

lose $3 million for GMR and that "it would be false if someone

said that." According to Asher, Pujals called Asher either

the day of or the day after Jackson's termination and told

Asher that Jackson had mismanaged GMR and lost a tremendous or

exorbitant amount of money. Latham testified that at a

15
meeting in April, Pujals also initiated the conversation

regarding Jackson stating that "Jackson had been removed from

his job because he lost $3 million." In neither of these

conversations did Pujals mention that the company's financial

situation had been affected by a reduced line of credit, the

$1.1 million loss in the first half of 2001, the $400,000

accounting error, or the $1.4 million drop-ship inventory

problem, none of which could be attributed to Jackson.

In summary, Pujals knew his statements were false. He

initiated both conversations in which he defamed Jackson. Our

independent review of the record, considering the evidence in

the light most favorable to Jackson, shows clear and

convincing proof of actual malice; thus, the trial court did

not err in refusing to strike Jackson's punitive damage claim.

III. Qualified Privilege

The principle of qualified privilege protects a

communication from allegations of defamation if made in good

faith, to and by persons who have corresponding duties or

interests in the subject of the communication. Smalls v.

Wright, 241 Va. 52, 54, 399 S.E.2d 805, 807 (1991). A

plaintiff can overcome the privilege by providing evidence

that the statements were made with malice. Fuste, 265 Va. at

134, 575 S.E.2d at 863. In this case, the trial court

concluded that the privilege did not exist and declined to

16
instruct the jury on the issue. GMR asserts this holding was

error.

We need not resolve whether qualified privilege applied

to the alleged defamation in this case because, even if it

did, the trial court's failure to instruct the jury was

harmless error. In Great Coastal Express, Inc. v. Ellington,

230 Va. 142, 154, 334 S.E.2d 846, 854 (1985), we held that the

trial court erred in instructing the jury that a qualified

privilege could be overcome if actual malice was established

by a preponderance of the evidence. We held such error

harmless, however, because the jury awarded punitive damages

pursuant to an instruction that required proof of actual

malice by clear and convincing evidence. Id. at 155, 334

S.E.2d at 855. Thus, "the jury necessarily found that the

plaintiff had carried the heavier burden of proof . . . of

malice sufficient to defeat the privilege." Id.

In this case, even if the alleged defamation was entitled

to a qualified privilege, the privilege would have been lost

if the jury found Pujals uttered the statements with actual

malice. As discussed above, the jury was required to and did

find that the statements were made with actual malice when it

awarded punitive damages. Because we have already concluded

that the record supports the award of punitive damages, we

hold that any failure to instruct the jury on qualified

17
privilege was harmless error because the privilege would have

been lost upon the jury's finding of actual malice.

IV. Remittitur

The trial court set aside the jury's $5 million

compensatory damage award for defamation and ordered

remittitur of $4 million leaving a compensatory damage award

of $1 million. Jackson accepted the judgment of the trial

court under protest and filed this appeal pursuant to Code

§ 8.01-383.1.

A trial court may set aside a verdict because it is

excessive if the amount awarded shocks the conscience of the

court either because it indicates "the jury has been motivated

by passion, corruption or prejudice" or "has misconceived or

misconstrued the facts or the law," or because it is so

disproportionate "to the injuries suffered as to suggest that

it is not the product of a fair and impartial decision."

Shepard v. Capitol Foundry of Virginia, Inc., 262 Va. 715,

720-21, 554 S.E.2d, 72, 75 (2001) (quoting Edmiston v.

Kupsenel, 205 Va. 198, 202, 135 S.E.2d 777, 780 (1964));

Poulston v. Rock, 251 Va. 254, 258, 467 S.E.2d 479, 481

(1996).

The trial court in this case concluded that the $5

million jury verdict was shockingly excessive, explaining that

it did not believe the jury was motivated by "bias, passion,

18
or prejudice," but rather "misconceived or misunderstood the

facts or the law." The trial court opined that the jury

confused and commingled elements of contract and defamation

damages leading to an excessive compensatory defamation award.

In reviewing a trial court's order of remittitur, we

apply an abuse of discretion standard. Shepard, 262 Va. at

721, 554 S.E.2d at 75. Applying this standard requires a two-

step analysis: (1) we must find in the record both the trial

court's conclusion the verdict was excessive and its analysis

demonstrating that it "considered factors in evidence relevant

to a reasoned evaluation of the damages" when drawing that

conclusion, and then (2) we must determine whether the

remitted award is "reasonab[ly] relat[ed] to the damages

disclosed by the evidence." Poulston, 251 Va. at 259, 467

S.E.2d at 482 (quoting Bassett Furniture Indus. v. McReynolds,

216 Va. 897, 911-12, 224 S.E.2d 323, 332 (1976)). "Both of

these steps require an evaluation of the evidence relevant to

the issue of damages" and mandate that we consider the

evidence in the light most favorable to the party awarded the

jury verdict, in this case Jackson. Shepard, 262 Va. at 721,

554 S.E.2d at 75.

Jackson asserts the trial court abused its discretion in

concluding the $5 million jury verdict was excessive. The

record contains the trial court's conclusion the verdict was

19
excessive and its reasons for that conclusion. However, we do

not find support for the trial court's conclusion in the

record because the trial court failed to consider, in the

light most favorable to Jackson, all the "factors in evidence

relevant to a reasoned evaluation of the damages." Poulston,

251 Va. at 259, 467 S.E.2d at 482. Thus, we hold that the

trial court abused its discretion in setting aside the jury

verdict on compensatory damages for defamation and in ordering

remittitur.

The trial court's explanation for its belief that the

jury misconceived or misunderstood the facts and the law is

that the jury was confused about which of Jackson's injuries

could be compensated in the defamation award. An obvious

example of the jury's confusion and commingling, according to

the trial court, was the jury's breach of contract award.

Neither party disputes that the jury was confused and

improperly included in the breach of contract award $88,000

related to defamation. This confusion and commingling,

according to the trial court, indicates that the jury was also

confused and improperly commingled other elements and evidence

of damages in setting the defamation award.

The trial court, appropriately, did not rely solely on

the jury's mistake regarding the breach of contract award as

sufficient support for its belief that the jury was also

20
confused and included improper elements of damage in the

defamation award. The trial court identified other factors

and evidence which it believed supported the conclusion that

the defamation award was the product of confusion and

inclusion of improper elements of damage.

The trial court first identified as a source of confusion

the jury instructions disallowing emotional distress damages

on the breach of contract claim but allowing such damages on

the defamation claim. These instructions, in the court's

view, led the jury to include in the defamation award

emotional distress damages that arose not from the defamation,

but from Jackson's termination. This conclusion, however, is

not supported by the record.

The trial court, in response to GMR's motion in limine,

excluded any evidence of emotional distress damages based on

Jackson's termination from GMR, and we find no such evidence

in the record. Nevertheless, GMR attempts to defend the trial

court's conclusion by referencing portions of the record out

of context where Jackson refers to his emotional state at the

time of his termination from GMR.

As evidence that Jackson's emotional distress stemmed

from his termination, GMR cites Jackson's testimony that he

"was already under quite a bit of pressure as it was, since

[he] had been terminated with no severance" and that the

21
defamation was "in addition to the shock" Jackson had already

endured. However, Jackson made these statements in response

to counsel's inquiry regarding his reaction upon learning of

the defamation. GMR also highlights Jackson's discussion of

"having to start over" and "build a career again." This

testimony did not, as GMR suggests, pertain solely to his

employment situation upon termination from GMR, but also to

his career "at the moment" of trial when he was still trying

to overcome the harm resulting from the defamation.

Therefore, viewing the evidence in the light most favorable to

Jackson, we conclude that the record does not contain

sufficient evidence regarding Jackson's emotional distress

caused by termination from GMR to conclude that the jury

included damages based on such emotional distress in its

defamation award.

Next, the trial court reasoned that the jury improperly

included in the defamation award economic injuries Jackson had

identified as flowing from his loss of employment with GMR,

such as loss of GMR stock options. The trial court found that

statements Jackson's counsel made during argument on the

remittitur motion reinforced its conclusion. Again, the

record does not support this conclusion.

Jackson introduced evidence of the potential benefits

stemming from his employment with GMR as part of his fraud

22
claims. The trial court struck those claims and so instructed

the jury. Nowhere in the record did Jackson claim these

potential benefits as an element of damages, either for breach

of contract or for defamation.

While arguing against remittitur, Jackson's counsel did

not identify those economic benefits as an element of

Jackson's damages, but rather discussed them in response to

the trial court's inquiry regarding why the amount of the

award, $5 million, was not shocking. Counsel explained that

in the context of this case, $5 million was not an extravagant

amount because chief executive officers and members of

management in these types of businesses regularly dealt in

multi-million dollar opportunities such as those Jackson

identified as having taken place at GMR prior to his

termination. And, counsel continued, the jury was entitled to

consider numbers of such size in making the defamation award

because corporations were not offering Jackson such

opportunities following the defamation, although they had

offered opportunities to him prior to the defamation.

More importantly, in considering reasons which might

account for the size of the defamation award, the trial court

ignored other evidence and elements upon which the jury could

have based the award. The trial court held that the

defamatory statements constituted defamation per se and

23
properly instructed the jury that Jackson was entitled to

compensatory damages for injury to his personal and business

reputation, humiliation, and embarrassment without proof of

any actual or pecuniary injury. The trial court also

instructed the jury that in determining damages for the

defamation claim it could

take into consideration all of the circumstances
surrounding the statement, the occasion on which it
was made and the extent of its publication, the
nature and character of the insult, the probable
effect on those who heard the statement, and its
probable and natural effect upon the plaintiff's
personal feelings and upon his standing in the
community and in business.

Your verdict should be for an amount that will fully
and fairly compensate him for:

(1) any loss or injury to his business;

(2) any insult to him including any pains,
embarrassment, humiliation, or mental
suffering;

(3) any injury to his reputation; and

(4) any actual, out-of-pocket losses that were
caused by the statement.

In deciding to order remittitur, the trial court failed to

address Jackson's evidence regarding injury to his reputation,

humiliation, and embarrassment. The trial court also failed

to acknowledge Jackson's right to recover greater damages

because he presented evidence of his untarnished reputation

prior to the defamation and of his fear the defaming remarks

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reached members of the business community beyond the Seisint

executives. See Poulston, 251 Va. at 261-62, 467 S.E.2d at

483.

Jackson established that though he immediately began

working for Seisint after his termination, the defaming

remarks caused him to lose the chance of obtaining a

management position and the lucrative opportunities available

to similarly situated managers. From March 2002 to January

2003, Jackson worked in sales and as a consultant to Seisint

and other companies. His earnings were largely commission-

based, dependent upon his success in selling Seisint's systems

to the federal government. When Seisint eventually hired him,

Jackson did not hold what he considered a management position

because he did not report to the chief executive officer, was

not included in management meetings, and had no ability to

make management decisions. Seisint hired approximately six

managers in the year Jackson served as a consultant and

employee. Jackson expressed distress and humiliation due to

losing his opportunity to manage after 25 years: "It made me

feel, frankly, quite humiliated and as though I was underused,

and it put me in a stressful situation where I didn't have

much control."

Jackson established his unblemished reputation by

testifying to his rise in his field, including obtaining and

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maintaining coveted top-level security clearances with the

federal government through multiple extensive "lifestyle

polygraph" examinations. He also discussed his fears about

wider publication of the defaming remarks when he testified to

receiving no inquiries from potential employers after sending

resumes to "tens of people literally" compared to 15 months

earlier, prior to the defamation, when he had three potential

job opportunities.

In determining that the defamation award was excessive,

the trial court did not address the injuries presumed in

defamation per se or the evidence regarding the impact of the

defamation on Jackson's emotional state, reputation, and

employment opportunities, all of which the jury was entitled

to consider. Therefore, the record does not support a finding

that the trial court "considered factors in evidence relevant

to the reasoned evaluation of the damages." Poulston, 251 Va.

at 259, 467 S.E.2d at 482.

Finally, GMR also contends we should affirm the trial

court's order because, in comparison with other verdicts for

defamation upheld in Virginia, the defamation award in this

case is excessively large. In the recent case of Rose v.

Jaques, 268 Va. 137, 597 S.E.2d 64 (2004), we declined to

compare verdicts as a means to measure a verdict's

excessiveness, but instead analyzed, as we have today, whether

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the jury was influenced by passion, corruption, or prejudice,

or misunderstood the facts or law. Id. at 159, 597 S.E.2d at

77 (citing Shepard, 262 Va. at 720-21, 554 S.E.2d at 75).

Additionally, verdicts for defamation per se are not suitable

for comparison because each case is factually unique and

because juries are entitled to presume and award compensatory

damages even if the plaintiff cannot prove actual injury. See

Poulston, 251 Va. at 260-61, 467 S.E.2d at 483. Thus, we find

no merit in GMR's argument that Jackson's verdict is excessive

when compared with other defamation verdicts.

V. Summary

In summary, the alleged defamatory statements were timely

and properly pled and proven and were not statements of

opinion. Assuming without deciding that the statements were

entitled to qualified privilege, the failure to instruct the

jury on this issue was harmless error because actual malice

was established by clear and convincing evidence. The trial

court abused its discretion in setting aside the jury award

for compensatory damages based on defamation and in ordering

remittitur because the record does not support the trial

court's conclusion that the award was excessive or was the

product of jury confusion and commingling. Further, the trial

court failed to consider elements of recovery upon which the

27
compensatory damage award could be based and the evidence

which supported those elements.

Accordingly, we will affirm the judgment of the trial

court, but will reverse that portion of the judgment setting

aside the compensatory damage award on Jackson's defamation

claim and ordering remittitur and enter final judgment

reinstating the jury verdict on that award.

Record No. 050943 – Affirmed.
Record No. 050937 – Reversed and
final judgment.

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