Virginia Beach v. Giant Sq. Shopping Ctr., Record No. 971746.

• Decision Date: 17 April 1998
• Docket Number: Record No. 971746.
• Citation: 498 S.E.2d 917,255 Va. 467
• Parties: CITY OF VIRGINIA BEACH v. GIANT SQUARE SHOPPING CENTER COMPANY.
• Court: Virginia Supreme Court

498 S.E.2d 917

255 Va. 467

CITY OF VIRGINIA BEACH v. GIANT SQUARE SHOPPING CENTER COMPANY.

Record No. 971746.

Supreme Court of Virginia.

April 17, 1998.

L. Steven Emmert, Virginia Beach, for appellant.

Grover C. Wright, Jr., Virginia Beach, for appellee.

Present: All the Justices.

COMPTON, Justice.

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 12½ 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...