Painter v. Fred Whitaker Co.

¶1delivered the opinion of the Court.

¶2The dispositive issue in this appeal involves a civil litigant’s right to withdraw his prior consent to a trial by a special three-member jury under Code § 8.01-359(D).

¶3In February 1981, James W. Painter, a vice president and longtime employee of Fred Whitaker Company (Whitaker), a yarn dying company, severed all his connections with Whitaker. Whitaker sued Painter in March 1981, claiming that while Painter was an employee of Whitaker, Painter had breached the fiduciary duty he owed to Whitaker by (1) converting assets of Whitaker, (2) preempting Whitaker’s opportunity to purchase manufacturing machinery, (3) disposing of Whitaker’s products at less than market value, (4) making improper allowances and deductions to customers’ accounts, and (5) establishing a competing business. Painter denied these averments and filed a counterclaim to recover the value of his capital stock, as provided in an October 1970 stock purchase agreement.

¶4After the parties had engaged in discovery for a period of almost three years, the trial court entered an order dated March 5, 1984, requested by both counsel, fixing the case for trial before a special three-member jury on April 17, 1984. Counsel for Painter mistakenly advised Painter that the jurors would be selected from non-residents of the City of Roanoke. When Painter’s counsel discovered that one of the persons Painter wanted as a juror did not reside in the City of Roanoke and, under Code § 8.01-359(D), would be ineligible to serve as a juror, he filed a motion on March *63319, 1984 to withdraw as counsel and substitute other counsel. On that day, the trial court permitted Painter’s original counsel to withdraw and noted the appearance of substitute counsel.

¶5Substitute counsel immediately moved to vacate the order providing for a special three-member jury and requested the trial court to impanel a regular jury for the trial. After a hearing on March 26, 1984, the trial court denied the motion to vacate the previous order, finding that although the motion was timely made and Whitaker would not be prejudiced by the suggested change of juries, “the fundamental guideline ... is how is the best way to handle this case, and I am of the opinion that this is the type of case that cries out for a special jury.”

¶6Whitaker argues that the trial court had the discretion to require a special three-member jury in the first instance, citing Rust v. Reid, 124 Va. 1, 24, 97 S.E. 324, 330 (1918); Lemons v. Harris, 115 Va. 809, 812, 80 S.E. 740, 741 (1914); Southern R. Co. v. Oliver, 102 Va. 710, 714-15, 47 S.E. 862, 864 (1904); and Atlantic & Danville R. R. Co. v. Peake, 87 Va. 130, 133-34, 12 S.E. 348, 348-49 (1890). None of these cases considers the impact of Code § 8.01-359(D), which the General Assembly enacted in 1950. Instead, those cases dealt with the denial of a special jury of the same number required in civil cases, requested to be from another venue by one of the parties, where local prejudice was asserted but not shown.

¶7The right to request a jury from another venue where an impartial jury cannot be obtained locally is now codified in Code § 8.01-363.1 In contrast, Code § 8.01-359(D) provides for special juries of three members if agreed to by all litigants.2

¶8*634In Thomas v. Commonwealth, 218 Va. 553, 556, 238 S.E.2d 834, 836 (1977), we held that a trial court abused its discretion in refusing to allow a defendant in a criminal case to withdraw his previous waiver of a jury trial. Thomas moved to withdraw his waiver 11 days before trial. Basing our decision on Article I, § 8 of the Constitution of Virginia and Code §§ 19.2-257 and -258, which provide for the right to trial by jury in criminal cases, we concluded that the trial court abused its discretion in refusing to permit the defendant to withdraw his previous waiver of jury trial where the motion was seasonably made, was not made for the purpose of delay, and the granting of the motion would not unreasonably delay the trial.

¶9Article I, § 11 of the Virginia Constitution provides in pertinent part that “in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred.” Code § 8.01-336 provides in part that “[t]he right of trial by jury as declared by Article I, § 11 of the Constitution of this Commonwealth and by the statutes thereof shall be preserved inviolate to the parties.”

¶10Painter moved for a regular jury more than 30 days prior to trial; indeed, the trial court expressly found that the motion was timely made and that, if granted, Whitaker would not be prejudiced. Moreover, in contrast to Thomas, where the defendant assigned no reason for withdrawing the waiver other than his change of mind, Painter and his original counsel testified that Painter had consented to a special jury only because he received erroneous legal advice.

¶11The sole reason given by the trial court for the denial of Painter’s motion was that the special three-member jury was better able to decide the issues than a regular jury. A trial court may not compel a party to agree to a special three-member jury because it considers that body a superior trier of fact.

¶12Given the clearly expressed constitutional purpose and legislative intent to preserve the right to trial by jury in both criminal and civil cases, we think that a consent to a special three-person jury under Code § 8.01-359(D) may be withdrawn before trial under the same conditions enunciated in Thomas. We hold, therefore, that Painter was entitled to withdraw his previous agreement *635to the special jury under these circumstances. Accordingly, we will reverse the case and remand it to the trial court for further proceedings.

¶13Reversed and remanded.