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Painter v. Fred Whitaker Co.
Citations: 235 Va. 631; 369 S.E.2d 191; 4 Va. Law Rep. 3156; 1988 Va. LEXIS 73Docket: Record No. 850268
Court: Supreme Court of Virginia; June 10, 1988; Virginia; State Supreme Court
The court addressed the issue of a civil litigant's right to withdraw consent for a trial by a special three-member jury under Code § 8.01-359(D). After severing ties with Fred Whitaker Company, James W. Painter faced a lawsuit from Whitaker for alleged breaches of fiduciary duty. Painter counterclaimed for the value of his capital stock. Following nearly three years of discovery, the trial court set the case for trial with a special jury on April 17, 1984. However, Painter’s new counsel sought to vacate this order, claiming that a juror essential for selection was ineligible due to residency requirements. The trial court denied the motion, asserting the case warranted a special jury despite the change in counsel. The court referenced previous cases and clarified that Code § 8.01-359(D) was distinct in granting the right to a special jury if all parties agreed. It also noted a precedent from Thomas v. Commonwealth, which allowed withdrawal of a jury waiver when timely and not intended to delay the trial, suggesting a similar principle could apply in civil cases regarding jury selection. Article I, Section 11 of the Virginia Constitution emphasizes the preference for trial by jury in property and civil disputes, asserting that this right should be preserved. Virginia Code § 8.01-336 reinforces this, stating that the right to trial by jury, as outlined in the Constitution, must remain intact for the parties involved. Painter filed a motion for a regular jury more than 30 days before trial, which the court deemed timely and stated would not prejudice Whitaker. Unlike the precedent set in Thomas, where a defendant retracted a jury waiver without justification, Painter's decision was based on prior erroneous legal advice regarding a special jury. The trial court denied Painter's motion solely on the belief that a special three-member jury would be more effective, a stance that is not permissible. The court cannot compel consent to a special jury based on perceived superiority. Given the constitutional and legislative emphasis on preserving jury rights, consent to a special jury may be revoked before trial under similar conditions as in Thomas. Consequently, Painter was entitled to withdraw consent for the special jury, leading to the court's decision to reverse and remand the case for further proceedings. Additionally, Code § 8.01-363 allows for summoning jurors from other jurisdictions if local jurors cannot be found, and Code § 8.01-359(D) outlines the process for forming a special jury with the parties' consent.