dissenting.
The majority implicitly holds that the trial judge abused his discretion when he acted to avoid the appearance of impropriety. I disagree.
Seizing on a “fair trial” statement of the trial judge, the majority, eschewing reliance on the contemporaneous objection rule, sustains the plaintiffs alternative argument that the trial court “abused its discretion in setting aside the original verdict and ordered a new trial.” The majority states that “the court erred in setting aside an error-free verdict and ordering a new trial.”
Central to the majority’s rationale is this sentence in the opinion: “The judge stated unequivocally . . . that he thought the parties had had ‘a fair trial.’ ” Reference to the appellate record will demonstrate whether the “fair trial” statement actually was “unequivocal.”
During argument of the defendant’s motion to set aside the first verdict, rendered by the trial judge sitting without a jury, plaintiffs counsel argued that the verdict should be confirmed. In response, the trial judge said:
*41“I think the whole thing is a mess. I agree with a lot of what you have to say. But I think though that if there is any question about the propriety of the Court making the inquiry of counsel as to settlement possibilities, the Court, being the trier of fact — now, of course, in a jury case, it makes no difference — but in this particular case maybe I ought not to have done that.” (Emphasis added.)
Responding, plaintiffs counsel argued that the defendant should have the burden of appealing the first verdict if there had been a “mistake.” He said: “And we had a fair trial.” The trial judge then stated: “I think you had a fair trial. But I also think that if there is a possibility of some error, that this Court ought to correct it and not let it go ¡further where you have to litigate in the appellate court and maybe come back, after doing all that and then come back for another trial.” (Emphasis added.) Subsequently, the judge sustained defendant’s motion and ordered a new trial before a different judge.
So, we see that the “fair trial” statement was not “unequivocal.” Rather, throughout his comments, the trial judge indicated there was a “question” about the propriety of his hearing a case without a jury when armed with information about settlement discussions. Such information presumably included knowledge of the dollar amounts demanded by the plaintiff and offered by the defendant. The judge alluded to the “possibility of some error,” and, in my view, properly concluded that an appearance of impropriety would prevail if he let his verdict stand.
Indeed, Canon 2 of the Canons of Judicial Conduct for the State of Virginia is titled: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.” My consideration of the whole record in this case convinces me that the trial judge endeavored to comply with this requirement, and I would decide that he did not err in so doing.
Accordingly, I would hold there was no abuse of discretion and would affirm the judgment below.