PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan,
and Powell, JJ., and Lacy, S.JJ.

VERBENA ASKEW
                                            OPINION BY
v.   Record No. 110323               ELIZABETH A. McCLANAHAN
                                          March 2, 2012
BRENDA COLLINS

        FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                        AND JAMES CITY COUNTY
                       Walter J. Ford, Judge

      In this appeal, we consider whether the Circuit Court of

the City of Williamsburg and James City County erred when it:

(1) refused to set aside the jury's verdict against Verbena

Askew ("Askew"); and (2) refused to apply Code § 8.01-35.1 to

reduce the amount of the judgment.

      In 2004, Brenda Collins filed a motion for judgment against

Verbena Askew, a former circuit court judge, The Daily Press,

Inc., and a City of Hampton employee, alleging defamation and

breach of contract.   She later filed an amended complaint which

included the City of Hampton as a defendant, and added claims

for conspiracy to tortiously interfere with a contract and for

common law conspiracy.   During the course of litigation, Collins

settled with the City of Hampton employee, The Daily Press, and

the City of Hampton, and received $120,000 in proceeds from

those defendants.

      The case proceeded to trial against Askew only on claims of

defamation, breach of contract, and conspiracy.   The jury
returned a verdict in Collins' favor on the defamation claim

based on one discrete statement made by Askew to The Daily Press

on January 8, 2003. 1   Askew moved the trial court to set aside

the verdict, or to reduce it by the sums Collins had already

received from the other defendants, arguing that a reduction was

required by Code § 8.01-35.1.    The trial court denied the

motion, finding evidence sufficient to support the jury's

finding.    The trial court refused to reduce the judgment against

her by the amount of the settlements.    A final order was entered

awarding a judgment to Collins in the amount of $350,000 with

interest.   On appeal, Askew challenges the trial court's

judgment refusing to set aside the jury verdict and to reduce

the judgment against her.    We will affirm its judgment.

     Askew presided over the drug treatment court in which

Collins previously worked in the City of Hampton.    In 1999,

Collins lodged a complaint of sexual harassment against Askew

and the City of Hampton.    In 2001, Askew signed a letter of

understanding obligating her not to make any disparaging

comments or statements about Collins' conduct or character and

to maintain confidentiality.




     1
       The jury also ruled in Collins' favor on the breach of
contract claim. The jury ruled in Askew's favor on the
conspiracy claim. Neither of these claims is at issue on
appeal.

                                  2
     In early 2003, when Askew was being considered for

reappointment, a member of the General Assembly requested

information concerning a rumored settlement involving Askew.

The settlement agreement between Collins and Askew and a copy of

the Equal Employment Opportunity Commission ("EEOC") charge

against Askew were eventually produced to the General Assembly

member with Collins' name redacted.    Pursuant to a subsequent

subpoena, all of the documents relating to Collins' EEOC

complaint were produced to the legislature without any

redactions.

     Evidence was presented to show that several of the

documents were also released to The Daily Press.   On January 8,

2003, Askew spoke to two Daily Press reporters and made a

statement that "Collins was institutionalized - that's the only

way you qualify for family leave." 2

     At trial, Collins offered testimony about her career at the

drug treatment court, her sexual harassment claim against Askew,

and the settlement.   She explained to the jury how she was

affected after The Daily Press published the January 21, 2003

article concerning her mental state and accusing her of lying

when she filed the EEOC claim.   She also talked about Askew's

     2
       Although seven statements made by Askew were presented to
the jury on the verdict form, the jury only found in Collins'
favor as to the one statement that Collins had been
institutionalized. None of the other statements are relevant to
this appeal.

                                 3
statement to the reporters on January 8th that Collins was

institutionalized and how she believed the statement was

restated to others.   Collins acknowledged that the statement was

not published in the article.   However, evidence was presented

that the staff of The Daily Press reviewed the statement made by

Askew to the reporters and discussed it during the meetings

prior to publication of the article.

     On appeal, Askew assigns error to the judgment of the trial

court on the grounds that (i) the court erred in refusing to set

aside the jury's verdict because the evidence established that

Askew's statement did not proximately cause Collins' claimed

damages; and (ii) the court erred in refusing to apply Code

§ 8.01-35.1 to reduce the amount of the judgment.

     Askew contends the trial court should have set aside the

jury verdict as to Collins' defamation claim because the

defamatory statement upon which the jury found in Collins' favor

and awarded damages did not appear in The Daily Press article,

and thus, could not have proximately caused Collins' damages.

We disagree.

     A private individual may recover actual, compensatory

damages for a defamatory publication "upon proof by a

preponderance of the evidence that the publication was false,

and that the defendant either knew it to be false, or believing

it to be true, lacked reasonable grounds for such belief, or


                                 4
acted negligently in failing to ascertain the facts on which the

publication was based."   The Gazette, Inc. v. Harris, 229 Va. 1,

15, 325 S.E.2d 713, 724-25 (1985).

     "It is difficult, if not impossible, to prove with

mathematical precision the quantum of damages for injury to

reputation, humiliation, and embarrassment which may flow from a

defamation.   For this reason, the common law, as early as 1670,

modified the usual standard of proof of damages in those cases

where the words uttered were actionable per se."     Great Coastal

Express, Inc. v. Ellington, 230 Va. 142, 148, 334 S.E.2d 846,

850 (1985).   "[I]f the published words are determined . . . to

be actionable per se at common law, compensatory damages for

injury to reputation, humiliation, and embarrassment are

presumed."    Id. at 151, 334 S.E.2d at 852.   "At common law,

defamatory words which are actionable per se [include] . . .

[t]hose which impute to a person unfitness to perform the duties

of an office or employment of profit, or want of integrity in

the discharge of the duties of such an office or employment."

Id. at 146-47, 334 S.E.2d at 849.

     The instruction for per se defamation was given to the

jury, without objection from Askew, and she does not challenge

the instruction on appeal.   Collins presented evidence that

Askew knew her statement was false, or at a minimum that Askew

lacked reasonable grounds for this belief or otherwise


                                  5
negligently failed to ascertain facts in support of the

defamatory statement.   Neither this evidence nor the court's

finding that the statement was defamatory per se is challenged

by Askew on appeal.   Thus, as a matter of law, the jury needed

no proof of damages suffered by Collins on which to predicate

its compensatory award based upon the per se defamation

negligently published by Askew.   The reputational damage to

Collins resulting from Askew's statement was properly presumed,

and the jury's award of compensatory damages to Collins was

appropriate under established common law principles for per se

defamation.   Accordingly, the trial court did not err in

refusing to set aside the verdict.

     Secondly, Askew contends that under Code § 8.01-35.1, she

is entitled to an offset of the judgment for settlement amounts

paid to Collins by other defendants prior to trial.   We

disagree.

     Code § 8.01-35.1(A)(1) states that

     [w]hen a release or a covenant not to sue is given in
     good faith to one of two or more persons liable for
     the same injury to a person or property, . . . [i]t
     shall not discharge any other person from liability
     for the injury . . .; but any amount recovered against
     the other person or any one of them shall be reduced
     by any amount stipulated by the covenant or release.

(emphasis added).




                                  6
     Askew contends that until the Daily Press article was

published on January 21st, Collins had no damages. 3   This

assertion ignores the prior defamatory statement made by Askew

on January 8th.

     Any cause of action that a plaintiff has for defamation

accrues on the date that the defamatory acts occurred.     Jordan

v. Shands, 255 Va. 492, 498, 500 S.E.2d 215, 218 (1998).

Collins' defamation action accrued as a matter of law when Askew

made the per se defamatory statement to The Daily Press

reporters on January 8th.    Id. (citing Westminster Investing

Corp. v. Lamps Unlimited, 237 Va. 543, 546, 379 S.E.2d 316, 317-

18 (1989) and Caudill v. Wise Rambler, 210 Va. 11, 14-15, 168

S.E.2d 257, 260 (1969)).    Accordingly, Collins' emotional and

reputational injury resulting from Askew's statement was

suffered upon Askew's publication of the statement to the

reporters on that date.     This statement, for which Askew was

found liable by the jury, was never alleged to have been made by

any other defendant.   The injury resulting from the statement

was separate and distinct from the injury resulting from the

publication of the newspaper article on January 21st, therefore

making Code § 8.01-35.1(A) inapplicable in this case.    Thus, the

     3
       Askew's assertion that Collins attributed all of her
damages to the publication of the article in reliance on an
exchange between Collins and Askew's counsel is taken out of
context. The statement is not an affirmative disavowal and does
not rebut the presumption.

                                  7
trial court did not err in refusing to apply Code § 8.01-35.1 to

reduce the amount of the judgment against Askew.

     For the reasons stated above, we conclude that the trial

court did not err in refusing to set aside the jury's verdict or

in refusing to apply Code § 8.01-35.1 to reduce the amount of

the judgment.   We will affirm the judgment of the circuit court.

                                                         Affirmed.




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