Present: All the Justices
CITY OF VIRGINIA BEACH
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971746 April 17, 1998
GIANT SQUARE SHOPPING
CENTER COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
The main appellate issue in this eminent domain case is whether
the trial court abused its discretion in refusing to strike for
cause a prospective commissioner. An additional issue involves
refusal of a proposed instruction.
Appellant City of Virginia Beach instituted in 1994 eminent
domain proceedings against two parcels of land owned by appellee
Giant Square Shopping Center Company, a general partnership. The
City took the property in connection with the widening of
Independence Boulevard adjacent to the appellee’s shopping center.
The two actions were consolidated.
During the April 1997 trial, the court denied the City’s motion
to strike for cause prospective commissioner George R. C. McGuire.
At the conclusion of the evidence, the court refused to give
proposed instruction B, tendered by the City. Following
deliberations, the commissioners filed a report fixing the value of
the land taken at $129,700 and the damage to the residue at
$335,000. After overruling the City’s exceptions and denying its
motion for a new trial, the trial court confirmed the report in a
May 1997 judgment order, from which we awarded the City this appeal.
The City assigns error to the seating of McGuire and to the refusal
of the instruction.
The facts are undisputed. The partnership (hereinafter, the
landowners) consisted of a trust and six individuals, including D.
L. McKnight. Attorney Grover C. Wright, Jr., represented the
landowners at trial.
During voir dire, the trial court asked the prospective
commissioners as a group the following two questions in succession:
“Do any of you have any business associations or are you in any
joint ventures or business ventures with any of the owners of this
property? Have any of you worked in any capacity with any of these
landowners?” McGuire responded, “I’ve used Mr. McKnight as an
appraiser.”
Later, the court asked the group, “Are any of you acquainted
with any of the lawyers involved in this case?” McGuire responded,
“Mr. Wright is my attorney, and I know [the City’s attorney], and I
don’t think there is anything that would affect my decision.” The
court then stated: “Mr. McGuire I believe said that he has been a
client of Mr. Wright. Have any of the rest of you ever been a
client of Mr. Wright?” The court immediately asked eight additional
questions in succession, the first of which was: “Anybody currently
a client of Mr. Wright?” McGuire did not respond to any of these
questions.
Next, the court asked: “Have you ever had any of your property
acquired by the city?” McGuire responded: “We had some
negotiations with the city and they acquired some land which they
paid for.” To the court’s question: “Would that experience affect
your ability to be fair and impartial to both sides in this case,”
McGuire answered: “No, sir.”
At this point during the voir dire, the court granted the
City’s motion for individual examination of the prospective
commissioners out of the presence of the others. Then, the City’s
attorney called McGuire for “follow-up questions.” During
examination by the City, McGuire said that his earlier reference to
prior “negotiations” with the City actually entailed “negotiations
followed by a purchase” and “a condemnation trial” involving land
owned by “Indian River Associates,” a partnership in which McGuire
had a one-third interest. According to McGuire, attorney Wright
represented that partnership at trial, held “[t]wo years, three
years” prior, and “[m]y appraiser was Mr. McKnight.” McGuire stated
he sat in the courtroom as the representative of the partnership
during the “entire” trial of the prior case. At the conclusion of
his interrogation, McGuire answered affirmatively the court’s
question whether he “could be fair and impartial to both sides in
this case.”
As noted, the court denied the City’s request to strike McGuire
for cause. He served as one of the five commissioners. McKnight,
whose interest in the Giant Square partnership was 12 ½ percent,
testified as an appraiser for the landowners.
On appeal, the City argues “McGuire should have been struck for
cause from the panel of commissioners because of his previous,
close, relationship with the landowner and its counsel in nearly
identical circumstances.” The landowners contend the “trial court
in the instant matter was correct not to disqualify Dr. McGuire
automatically. The correct procedure was to conduct a voir dire
examination and assess from his demeanor and answers to questions
posed whether he could serve impartially. Having done so, the trial
court was well within the bounds of its discretion when it concluded
that Dr. McGuire was unbiased and impartial.” We disagree with the
landowners.
The principles applicable are settled. Code § 25-46.20
provides that when, as here, the issue of just compensation is to be
determined by a commission, “disinterested freeholders” shall act as
commissioners. Discussing the disqualification of condemnation
commissioners for cause, we have said the maintenance of public
confidence in the integrity of commission reports is vital. “[S]uch
reports should be kept free from the suspicion that the
commissioners may have been improperly influenced.” May v.
Crockett, 202 Va. 438, 440, 117 S.E.2d 648, 649 (1961). Accord
Commonwealth Transp. Comm’r v. DuVal, 238 Va. 679, 683, 385 S.E.2d
605, 607 (1989). The eminent domain statutes, designed to implement
constitutional mandates, “must be administered in a manner which
promotes confidence in the integrity of the process.” State Highway
and Transp. Comm’r v. Dennison, 231 Va. 239, 242, 343 S.E.2d 324,
326 (1986).
However, the trial court is given discretionary authority to
decide whether a prospective commissioner should be stricken for
cause, and the court’s judgment on this issue will not be reversed
on appeal unless there has been an abuse of discretion.
Commonwealth Transp. Comm’r v. Chadwell, 254 Va. 302, 305-06, 491
S.E.2d 723, 725 (1997).
Considering all the circumstances of this case, we hold the
trial court abused its discretion in refusing to dismiss McGuire
from the panel for cause. First, the record shows that, at the time
of trial, McGuire was a client of the landowners’ counsel: “Mr.
Wright is my attorney.” The trial court obviously misunderstood
that response as shown by its statement: “Mr. McGuire I believe
said that he has been a client of Mr. Wright.”
We have not overlooked the fact that McGuire subsequently did
not respond to any of the court’s set of eight questions, the first
of which was: “Anybody currently a client of Mr. Wright?”
Nevertheless, McGuire’s positive, affirmative response, “Mr. Wright
is my attorney,” must be accepted as the truth when measured against
mere silence that tends to contradict the stated fact.
Second, in the present case, landowner McKnight served as the
landowners’ appraiser with McGuire sitting as a commissioner. In
the prior condemnation case, McKnight served as the appraiser for
landowner McGuire, who was the landowners’ designated representative
sitting at counsel table. In these similar cases tried two or three
years apart, McGuire has moved from counsel table in the prior case
to the commissioners’ box in the present case to sit in judgment
when his former hired appraiser is the present appraiser and one of
the parties litigant. This scenario was forecast by the City during
voir dire and called to the trial court’s attention.
Under these circumstances, it is extremely unlikely the public
would have confidence in the integrity of the process when a
commissioner has the identity of interests demonstrated by this
prospective commissioner. This is true even though, as the record
shows, the commissioner is a “respected member of the community” and
“known to be a man of integrity,” who may be determined to discharge
his duties in a forthright and unbiased manner.
Thus, the trial court committed reversible error in refusing to
strike McGuire for cause. Because the case will be remanded, we
shall address the other error assigned should the issue arise upon
retrial.
The landowners presented evidence about the value of a portion
of the shopping center land as an outparcel to be used for a
restaurant. They asserted that this portion was suitable for
separate development before the take, but that the City’s widening
project had eliminated this development potential by reducing the
area available for shopping center parking.
Refused instruction B, tendered by the City, was based on
principles relating to compensability of damages attributed to
frustration of an owner’s plans for development. See State Highway
and Transp. Comm’r v. Lanier Farm, Inc., 233 Va. 506, 510-11, 357
S.E.2d 531, 533-34 (1987). We reject the City’s contention the
trial court erred in refusing the instruction. The subject was
covered adequately in granted instructions 8 and 11.
Accordingly, the judgment below will be affirmed in part and
reversed in part, and the case will be remanded for a new trial.
Affirmed in part,
reversed in part,
and remanded.