Cantrell v. Crews

• Decision Date: 14 January 2000
• Docket Number: Record No. 990224.
• Citation: 523 S.E.2d 502,259 Va. 47
• Court: Virginia Supreme Court
• Parties: Timothy L. CANTRELL, et al. v. Deborah W. CREWS.

523 S.E.2d 502

259 Va. 47

Timothy L. CANTRELL, et al. v. Deborah W. CREWS.

Record No. 990224.

Supreme Court of Virginia.

January 14, 2000.

Mark J. Peake (Caskie & Frost, on briefs), for appellants.

A. David Hawkins (Overbey, Hawkins & Selz, on brief), Rustburg, for appellee.

Present: All the Justices.

COMPTON, Justice.

This is the appeal of a judgment in a tort action for damages arising from a motor vehicle accident. The dispositive issue is whether the trial court erred in refusing to strike for cause a prospective juror.

In January 1995, appellee Deborah W. Crews was operating an automobile that was stopped on a street in the City of Lynchburg. Her vehicle was struck from the rear and she was injured as a result of the negligence of appellant Timothy L. Cantrell, who was operating a truck owned by his employer, appellant Winn-Dixie Raleigh, Inc. The plaintiff sustained a "soft tissue" injury that was diagnosed as a cervical sprain, for which she brought this action against defendants seeking recovery in damages.

In an October 1998 trial, the defendants admitted liability and the case was tried on the issue of damages only. A jury found in favor of the plaintiff and fixed her damages at $108,812.87. The trial court overruled the defendants' motion to set the verdict aside and entered judgment on the verdict. We awarded defendants an appeal limited to consideration of four assignments of error.

An issue raised by a portion of one of those assignments of error is dispositive of this appeal. The issue is whether the trial court erred in refusing to strike for cause a prospective juror who, at the time of trial, was a client of the law firm representing the plaintiff.

There is no dispute in the facts relevant to the issue we decide. The motion for judgment was on stationery of "Law Office/Overbey, Hawkins & Selz/Rustburg, Virginia." The pleading was signed by Mr. Hawkins as "Of Counsel" for "Overbey, Hawkins & Selz." Hawkins appeared at trial as attorney for the plaintiff.

During jury voir dire, after asking whether "anybody" knew the plaintiffs trial attorney, the trial court specified the name of Hawkins' law firm and identified by name each member of the firm, including "Bryan Selz." The court then asked, "Does anybody know any of those individuals or been represented by them or this firm or have any contact with them?"

Responding, prospective juror Holly Clingempeel stated that she knew Selz and said, "He's representing me." When the court asked, "How long ago?", the juror responded, "It's still going on."

Later during voir dire, while being questioned by defendants' attorney, Clingempeel revealed that her representation by Selz arose from "a car accident" and stated that she sustained "[n]eck and back" injuries. She said that she had filed a "lawsuit"; that the suit "is continuing right now"; and that Selz is representing her "in that."

Upon being asked by the court whether the fact that Hawkins or a member of his law firm was "currently" representing her would have "any bearing" on her judgment, Clingempeel responded, "No." She further stated that she could "assure" the court "under oath" that she could "ignore" her representation by the plaintiffs law firm "and be totally fair to both sides."

The trial court denied defendants' motion to strike for cause Clingempeel, as well as two other prospective jurors. In ruling on the motion, the court stated it believed the three jurors "can ignore any personal sort of contact or relationship or association they have with Mr. Hawkins, his firm, . . . and the like and be fair and that's the only test."

Elaborating, the trial court stated: "Campbell County is of such a nature that in this community people are going to know each other and have some kind of association and the association as described to me by the three folks to whom you objected to was not such that in and of itself prejudiced them or made an obvious bias or would lend itself to an obvious bias on their behalf."

Concluding, the trial court said: "I was impressed with their answers and I believe them to be truthful and I found nothing wrong with them sitting as jurors . . . ."

The plaintiff contends the trial court correctly refused to strike Clingempeel for cause. We disagree.

Parties to litigation are entitled to a fair and impartial trial by a jury of persons who "stand indifferent in the cause." Code § 8.01-358. "[T]he right to a fair and impartial trial in a civil case is as fundamental as it is in a criminal case. The civil courts constantly strive to protect this right. It lies at the very basis of organized society and confidence in our judicial system." Temple v. Moses, 175 Va. 320, 336, 8 S.E.2d 262, 268 (1940).

Upon review, the appellate court gives deference to the trial court's decision whether to retain or exclude prospective jurors. Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999). And, a trial court's decision on this issue will be affirmed unless there has been manifest error amounting to an abuse of discretion. Id. at 467, 522 S.E.2d at 176.

Recently, we considered in a condemnation case an issue almost identical to the present one. In City of Virginia Beach v. Giant Square Shopping Center Co., 255 Va. 467, 498 S.E.2d 917 (1998), one ground of a condemnor's objection to the seating of a prospective commissioner was that the commissioner, at the time of trial, was a client of the landowners' counsel.

There, we noted that, by statute, the issue of just compensation is to be determined by a commission of "disinterested freeholders,"...