Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,

JJ., and Russell and Koontz, S.JJ.

ROBERT P. BENNETT

OPINION BY

v. Record No. 100199 JUSTICE LEROY F. MILLETTE, JR.

 June 9, 2011

SAGE PAYMENT SOLUTIONS, INC.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jan L. Brodie, Judge

In this appeal, the primary issue we consider is whether 

an employee’s repudiation of an employment agreement can be 

used by the employer as a defense against a breach of contract 

claim. We hold that a party’s repudiation of future 

obligations under a contract, even after performance has begun,

may constitute a defense to a breach of contract claim. We 

also address issues concerning repudiation as a matter of law, 

amendment of the pleadings to conform to the evidence, and jury 

instructions.

I. Facts and Proceedings Below

In February 2008, Bennett was promoted to the position of 

President of Sage Payment Solutions, Inc. (“Sage”), and the 

parties entered into an Executive Employment Agreement 

(“Agreement”). Under the Agreement, Bennett was to earn a 

yearly salary of $360,000. The Agreement, which was for an 

initial term of one year with automatic renewals for successive 

one-year terms, also contained two other provisions relevant to 

this appeal. The Agreement’s termination provision provided 
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Bennett with severance benefits consisting of a year’s salary 

plus bonuses and other benefits unless Bennett resigned without 

“good reason” as defined in the Agreement or was terminated by 

Sage for good cause. In addition, the Agreement contained a 

“non-competition” clause restricting Bennett’s employment for a 

period of twelve months after his employment ended.

On June 7, 2008, following oral discussions with Sage 

about his compensation, Bennett wrote in an email to Sage that 

he would require increased compensation to the $1 million 

range, “or we agree to my transition out of the company.” In 

that email, Bennett also stated that if his compensation 

demands could not be met, then

we can work out a mutually agreeable transition plan. 

Perhaps the best approach would be to have me stay on 

in my current position or as a consultant while you 

are searching for or selecting a replacement from 

within. In either event, I will want the clock 

running on any post termination restrictions listed 

in my employment agreement.

When Sage did not meet his compensation demands, Bennett 

continued in the position of President but openly pursued other 

employment opportunities as he worked with Sage on this 

“mutually agreeable transition plan.” Sage told Bennett that 

it considered his email to constitute a resignation, and not 

merely a request for a higher salary. Bennett disagreed and

stated that he considered Sage’s refusal of his compensation 
3

demands to be a termination of his employment. Bennett’s 

employment was ultimately terminated on September 30, 2008.

Bennett filed a complaint against Sage seeking severance 

payments due under the Agreement. On the third day of a jury 

trial, prior to the close of Bennett’s case-in-chief, Sage 

moved for leave to amend its pleadings to include a defense of 

repudiation. Bennett objected, arguing that “[a]ccording to 

the definition of repudiation,” the facts of his performance do 

not support it, because Bennett continued to work and continued 

to perform his duties under the Agreement after he sent the 

June 7, 2008 email. The circuit court, nonetheless, granted 

Sage’s motion to amend and submitted the issue of repudiation 

to the jury. After the issue was submitted to the jury and the 

jury posed two questions concerning the instruction on 

repudiation,1 Bennett requested that the circuit court issue the 

jury an additional instruction to clarify the definition of 

repudiation. The court refused to give such an instruction, 

 1 Jury Instruction N states:

If you find that Mr. Bennett repudiated or 

rejected the Executive Employment Agreement by 

conditioning his performance of his duties on the 

Company’s acceptance of such changes beginning in May 

2008, then you may not find [Sage] liable for breach 

of contract for its subsequent rejection of his 

demand for severance pay.
4

stating that Bennett had agreed to the instructions that were

previously given to the jury.

After the jury returned its verdict in favor of Sage, 

Bennett moved to set aside the verdict, arguing that “the 

evidence does not support a finding that [he] clearly and 

unequivocally repudiated the entire performance of the 

contract.” The circuit court denied Bennett’s post-trial 

motions, and he timely filed his appeal to this Court.

II. Standard of Review

We review this appeal under well-settled principles.

“When parties come before us with a jury verdict that 

has been approved by the trial court, they hold the 

most favored position known to the law. The trial 

court’s judgment is presumed to be correct, and we 

will not set it aside unless the judgment is plainly 

wrong or without evidence to support it. We view the 

evidence and all reasonable inferences fairly 

deducible from it in the light most favorable to the 

prevailing party at trial.” We review matters of law 

de novo.

Syed v. ZH Technologies, Inc., 280 Va. 58, 68, 694 S.E.2d 625, 

631 (2010) (internal citations omitted).

We review a circuit court’s grant or denial of a party’s 

motion for leave to amend its pleadings, based on a variance 

between the evidence and the pleadings, on an abuse of 

discretion standard. We have explained:

In a case of variance, Code § 8.01-377 gives a trial 

court the discretion to apply the foregoing rule 

reasonably either by permitting amendment of the 

pleadings (and possibly postponing the trial) or, in 
5

lieu of amendment, by having the facts determined and 

rendering judgment, but only on the condition that no 

prejudice results. While the statute is remedial in 

purpose and should be liberally construed, it should 

not be interpreted in a manner inconsistent with its 

plain language.

Hensley v. Dreyer, 247 Va. 25, 30, 439 S.E.2d 372, 375 (1994) 

(citations omitted) (holding that “the trial court abused its 

discretion by concluding, in a manner inconsistent with the 

statutory language, that the variance ‘could not have 

prejudiced’” the appellant).

Additionally, upon review of the substance of jury 

instructions given by a circuit court,

our responsibility is to see that the law has been 

clearly stated and that the instructions cover all 

issues which the evidence fairly raises. [A] 

litigant is entitled to jury instructions supporting 

his or her theory of the case if sufficient evidence 

is introduced to support that theory and if the 

instructions correctly state the law. The evidence 

introduced in support of a requested instruction must 

amount to more than a scintilla.

Williams v. Cong Le, 276 Va. 161, 166, 662 S.E.2d 73, 76 (2008)

(internal citations and quotation marks omitted).

III. Repudiation of a Contract

Repudiation may be asserted as a valid defense to a breach 

of contract claim in Virginia. The United States Court of 

Appeals for the Fourth Circuit, applying Virginia law, has 

recognized that

in the case of a bilateral contract for an agreed 

exchange of performances, a repudiation of his duty 

by one of the parties terminates the duty of the 
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other. It gives to the latter the legal privilege of 

refusing to render the return performance; if sued 

for such refusal, the plaintiff's repudiation is a 

good defense.

WRH Mortgage, Inc. v. S.A.S. Assocs., 214 F.3d 528, 532 (4th 

Cir. 2000) (emphasis added) (citation and internal quotation 

marks omitted). We agree with the holding in WRH Mortgage that 

repudiation may be used as a defense to a breach of contract 

claim.

The question presented now becomes whether the court erred 

by allowing Sage to assert repudiation as a defense to

Bennett’s breach of contract claim based on Bennett’s demand 

for increased compensation or his “transition out of the 

company,” after he had already begun performance under the 

Agreement. While we acknowledge the line of Virginia cases 

that characterizes repudiation before performance is due under 

a contract as an anticipatory breach, we hold that repudiation 

may also apply to a contract that has been partially performed, 

when future obligations under the contract are repudiated. See

Lenders Financial Corp. v. Talton, 249 Va. 182, 189, 455 S.E.2d 

232, 236-37 (1995) (“[B]ecause defendant’s repudiation of this 

executory contract constitutes an anticipatory breach, 

plaintiff may sue on the contract without waiting for the time 

of defendant’s performance to arrive”); Link v. Weizenbaum, 229 

Va. 201, 203, 326 S.E.2d 667, 668-69 (1985) (holding that 
7

although the defendant clearly repudiated before performance of 

the contract commenced, “his repudiation could not serve as the 

basis for a claim of breach of contract because his co-obligor 

did not join in the repudiation either expressly or by 

assent”).

Our holding in this case is supported by our decision in 

Board of Supervisors of Fairfax County v. Ecology One, Inc., 

219 Va. 29, 245 S.E.2d 425 (1978). In Ecology One, we applied 

an anticipatory breach theory to a factual scenario in which 

performance under a contract had already begun. There, the 

contract for the construction of public streets and drainage 

facilities was formed in May 1973, and performance under that 

contract was underway as of October 1974 but an inspection 

revealed that the contractor’s “work had come to a complete 

halt” in the early months of 1975. Id. at 31, 245 S.E.2d at 

427. We held that the contractor had repudiated because it 

“abandoned its contract,” and we reversed the circuit court’s 

decision that the County had not made out a prima facie case 

for anticipatory breach. Id. at 33-34, 245 S.E.2d at 428.

In Ecology One, the contractor’s obligations required

continuous performance over a period of time. Id. at 31, 245 

S.E.2d at 426. The evidence justified the jury’s conclusion 

that the contractor had abandoned the contract. Id. at 33, 245 

S.E.2d at 428. We stated that “the abandonment of a contract 
8

will give rise to an action for anticipatory breach.” Id. In 

reaching this decision, we properly recognized that a party’s 

abandonment of his or her contractual duties under a continuous 

performance contract, after performance has commenced, 

constitutes an anticipatory repudiation. The same result 

applies in this case.

Our view is also supported by case law from the United 

States Supreme Court. In Franconia Assocs. v. United States, 

536 U.S. 129 (2002), for example, the Supreme Court applied 

repudiation principles to a factual scenario in which a party 

repudiated after performance had commenced. There, certain 

property owners agreed to devote a portion of their properties 

to low- and middle-income housing in exchange for low interest 

mortgage loans issued by the government. Id. at 132-33. The 

owners’ promissory notes allowed prepayment of the loans. Id.

at 133. But a subsequent act of Congress placed permanent 

restraints on the prepayment of the owners’ loans. Id. The 

owners filed suit against the government arguing that the act 

“effected . . . a repudiation of their contracts.” Id. The 

Supreme Court agreed with the owners and held that the act 

“qualified as a repudiation of the parties’ bargain.” Id. at 

133, 143. In so holding, the Court stated that “the promisor’s 

renunciation of a ‘contractual duty before the time fixed in 

the contract for . . . performance’ is a repudiation.” Id. at 
9

143 (quoting 4A Corbin on Contracts § 959, at 855 (1951) 

(emphasis in original).

The Restatement (Second) of Contracts also supports the 

view that a party may repudiate his or her contractual duties 

after performance has commenced. Section 250 defines 

“repudiation” as:

(a) a statement by the obligor to the obligee 

indicating that the obligor will commit a breach that 

would of itself give the obligee a claim for damages 

for total breach . . . or

(b) a voluntary affirmative act which renders the 

obligor unable or apparently unable to perform 

without such a breach.

Restatement (Second) of Contracts § 250 (1981). Thus, the 

Restatement’s definition does not provide that repudiation must 

occur prior to the commencement of any performance under the 

contract.

When a contract requires performance continuously for some 

period of time, a party’s renunciation of his or her 

contractual obligation may constitute a repudiation. Arthur L. 

Corbin, 9 Corbin on Contracts § 954, at 738 (interim ed. 2002) 

(section entitled “Breach by Repudiation of Obligation”). In 

such cases, the repudiation of the contractual obligation is 

“anticipatory with respect to the performances that are not yet 

due.” Id.

In sum, we hold that a party’s renunciation or abandonment 

of his or her contractual duties, after performance has 
10

commenced under a contract requiring continuous performance, 

constitutes a repudiation, which may be treated by the party to 

whom the duty is owed as an anticipatory breach of the 

contract. Therefore, the issue of Bennett’s alleged 

repudiation was properly before the jury.

IV. Bennett’s Repudiation

In his June 7, 2008 email to Sage, Bennett communicated 

his dissatisfaction with his salary:

[W]hile I would enjoy recommitting to Sage, the 

inequity between my current compensation and what I 

think my value is on the outside is substantial. 

With that in mind, I am suggesting that either my 

compensation be altered to something more in line 

with my value, albeit discounted, or we agree to my 

transition out of the company.

Bennett asserts that his communication with Sage was 

simply an invitation to negotiate, and that it clearly 

indicates his preference to stay with the company. He argues 

that his language did not evince a clear and unequivocal 

repudiation of the Agreement covering the entire contract 

because he also agreed to stay on for a period of time while he 

transitioned out of the company. But, while transitioning out 

of the company, he expected the twelve-month time frame 

restricting his employment under the non-competition clause, 

which he referred to as the “clock,” to be “running.”

In response, Sage argues that there was ample evidence by 

which the jury could find that Bennett had repudiated the 
11

contract. According to Sage, testimony at trial included 

statements attributed to Bennett during a June 5th conversation 

that July 1, 2008 was his “drop dead date” for his departure 

and that he had effectively given notice of his resignation. 

Also, Sage argued that Bennett never suggested that there was a 

third alternative to his receiving a higher salary or leaving 

Sage. Finally, Sage contends that Bennett never suggested that 

he would be willing to continue in his position at his current 

salary of $360,000 and that he suggested his own departure 

date.

We have held that “[i]t is firmly established that for a 

repudiation of a contract to constitute a breach, the 

repudiation must be clear, absolute, unequivocal, and must 

cover the entire performance of the contract.” Vahabzadeh v. 

Mooney, 241 Va. 47, 50, 399 S.E.2d 803, 805 (1991) (citations 

omitted); see also Restatement (Second) of Contracts § 250 

(repudiation entails a statement or “voluntary affirmative act” 

indicating that the promisor “will commit a breach” when 

performance becomes due).

In this case, when Bennett told Sage, four months into his 

year-long contract, that he would leave the company unless his 

demand for increased compensation was met, the jury could have 

found that Bennett repudiated his obligation under the 

Agreement. Bennett’s repudiation would have been anticipatory 
12

with respect to the remainder of the time he agreed to serve as 

Sage’s president under the Agreement. If Sage could not rely 

upon Bennett’s repudiation, it could not begin its search for 

his replacement until the day that Bennett simply failed to 

show up for work and notified Sage that he would no longer 

perform under the Agreement. Because the Agreement required 

continuous performance over a period of time, when Bennett 

declared he would leave his position as president unless his 

compensation was increased, Sage was entitled to rely on 

Bennett’s repudiation and treat it as a breach.

Therefore, we hold that the circuit court did not err in 

rejecting Bennett’s argument that he did not repudiate the 

contract as a matter of law, because he continued to perform 

his duties as he was attempting to negotiate his exit from the 

company. Based on the evidence presented, the jury was 

entitled to conclude that Bennett’s refusal to consider any 

alternative other than almost tripling his salary and his 

demand that his post-termination non-compete obligations begin 

running immediately constituted a repudiation by Bennett of his 

future obligations under the one-year contract.

V. Variance Between Evidence and Allegations

Bennett contends that the circuit court abused its 

discretion by allowing Sage to amend its defensive pleadings to 

include a defense of repudiation. We disagree.
13

In determining whether the circuit court erred by 

permitting Sage to include a defense of repudiation in its

pleadings, the issue is whether Bennett was “prejudiced” by the 

amendment. Code § 8.01-377.2 Furthermore, this Court has held:

[w]e adhere to the principle that a court may not 

base a judgment or decree upon facts not alleged or 

upon a right, however meritorious, that has not been 

pleaded and claimed. Every litigant is entitled to 

be told in plain and explicit language the 

adversary’s ground of complaint. Like any other 

rule, however, this principle must be reasonably 

applied, keeping in mind that its purpose is to 

prevent surprise.

In a case of variance, Code § 8.01-377 gives a 

trial court the discretion to apply the foregoing 

rule reasonably either by permitting amendment of the 

pleadings (and possibly postponing the trial) or, in 

lieu of amendment, by having the facts determined and 

rendering judgment, but only on the condition that no 

prejudice results. While the statute is remedial in 

purpose and should be liberally construed, it should 

not be interpreted in a manner inconsistent with its 

plain language.

Syed, 280 Va. at 71, 694 S.E.2d at 632 (internal citations 

omitted).

Sage moved to amend its answer to include the defense of 

repudiation prior to the close of Bennett’s case-in-chief. 

 2 Code § 8.01-377, entitled “Remedy when variance appears 

between evidence and allegations,” states in relevant part:

If, at the trial of any action, there appears to 

be a variance between the evidence and the 

allegations or recitals, the court, if it consider 

that substantial justice will be promoted and that 

the opposite party cannot be prejudiced thereby, may 

allow the pleadings to be amended.
14

According to Sage, the evidence presented during Bennett’s 

case-in-chief added support to its repudiation defense. 

Specifically, Sage notes that Bennett testified that he had not 

been involuntarily terminated by Sage, further evidencing that 

he instituted the termination of the Agreement. The court 

granted Sage’s motion to amend, stating:

I think the facts were both known to both sides that 

the argument is already pretty much laid out even 

already the way we have been proceeding and has been 

in the pleadings that I have seen. In light [of the 

fact] that I don’t believe it is prejudicial I am 

going to allow the amendment at this point, to allow 

them to argue repudiation at this point.

Bennett’s own testimony, offered during his case-in-chief, 

established facts which supported Sage’s repudiation defense. 

Substantial justice was promoted by instructing the jury how to 

properly frame the issues based on the evidence presented at 

trial. Bennett’s argument that he was prejudiced by the 

amendment is without merit because the evidence supporting 

Sage’s repudiation defense was not only known to Bennett, but

also offered by Bennett himself. Therefore, we hold that the 

circuit court did not abuse its discretion in allowing Sage to 

amend its answer to include a repudiation defense.

VI. Clarifying Instruction

Bennett argues that the circuit court erred in refusing to 

give the jury an instruction to clarify the definition of 

repudiation. We disagree.
15

As previously stated, although he objected to sending the 

issue of repudiation to the jury, Bennett did not object to 

Sage’s proposed jury instruction on repudiation. Furthermore, 

when the jury asked for clarification about the instruction 

regarding repudiation, Bennett agreed that the circuit court 

should simply instruct the jury to rely on the plain language 

of the instruction. Bennett waited until after the jury 

returned to deliberate to ask the court for a clarifying 

instruction regarding the definition of repudiation. Under 

these facts, when Bennett agreed to the jury instruction given 

on repudiation, and only asked the court to issue a clarifying 

instruction after the jury returned to deliberate, we hold that 

the circuit court did not abuse its discretion in refusing to 

issue Bennett’s proposed clarifying instruction. See E.I. 

DuPont De Nemours & Co. v. Snead, 124 Va. 177, 187, 97 S.E. 

812, 815 (1919) (holding it is not error for a circuit court to 

refuse an instruction after the jury has already been 

sufficiently instructed on that issue).

VII. Conclusion

For the reasons stated, we hold that the circuit court did 

not err in submitting the issue of repudiation to the jury, in

allowing Sage to amend its pleading to include the defense of 

repudiation, in refusing to issue the jury a clarifying 

instruction, and in refusing Bennett's motion to set aside the 
16

verdict. Accordingly, we will affirm the judgment of the 

circuit court.

Affirmed.