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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.
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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
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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
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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
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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
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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.”
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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
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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
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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
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[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.
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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).
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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
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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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