Askew v. Collins ( 2012 )

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
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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
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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).
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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.
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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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