Barr v. SW Rodgers Co., Inc.

Court of Appeals of Virginia

Barr v. SW Rodgers Co., Inc.

537 S.E.2d 620, 34 Va. App. 50, 2000 Va. App. LEXIS 852

CourtCourt of Appeals of Virginia

DecidedDecember 5, 2000

Docket1382992

StatusPublished

Cited by11 cases

This text of 537 S.E.2d 620 (Barr v. SW Rodgers Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barr v. SW Rodgers Co., Inc., 537 S.E.2d 620, 34 Va. App. 50, 2000 Va. App. LEXIS 852 (Va. Ct. App. 2000).

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Opinions

BENTON, Judge,

concurring and dissenting.

I concur in Part I and the portion of Part II holding that the Commissioner was not required to file a bill of complaint immediately upon notice of contest. Therefore, I would also reverse and remand this matter to the trial judge.

I would not decide the issue of prejudice, however, because the record does not establish that the parties had an opportunity to litigate that issue in the circuit court. As the majority notes, “we have not previously addressed” the meaning of the statute. Moreover, nothing on the face of the statute alerts the parties or the trial judge that prejudice is an element. The statement of facts indicates that the trial judge ruled at the conclusion of the Commissioner’s case-in-chief that the bill of complaint was not timely filed. Thus, the judge had no occasion to address the issue of whether Rodgers was prejudiced by the delay of fifteen months. Because the issue of prejudice encompasses factual determinations, see Niese v. Klos, 216 Va. 701, 704, 222 S.E.2d 798, 801 (1976), I would direct the trial judge to consider on remand that issue.

Likewise, the statement of facts establishes only that “Kendall [was] ... the foreman on site.” The record does not contain any further evidence upon which we might conclude that the trial judge erred in excluding Kendall’s out-of-court statements. I find no evidence in the record to support a conclusion that Kendall was authorized to speak for the corporation. See Monacan Hills v. Page, 203 Va. 110, 116, 122 S.E.2d 654, 658 (1961) (holding that statements of an agent are admissible only if evidence proves the agent has authority to bind the corporation and the agent is speaking in respect to matters within the agent’s scope of authority). I agree with the majority opinion that the statement of facts does not contain a proffer of the excluded testimony. Therefore, we [63]*63have no basis upon which to conclude that the trial judge erred in sustaining the objection.

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BENTON, Judge,

concurring and dissenting.

I concur in Part I and the portion of Part II holding that the Commissioner was not required to file a bill of complaint immediately upon notice of contest. Therefore, I would also reverse and remand this matter to the trial judge.

I would not decide the issue of prejudice, however, because the record does not establish that the parties had an opportunity to litigate that issue in the circuit court. As the majority notes, “we have not previously addressed” the meaning of the statute. Moreover, nothing on the face of the statute alerts the parties or the trial judge that prejudice is an element. The statement of facts indicates that the trial judge ruled at the conclusion of the Commissioner’s case-in-chief that the bill of complaint was not timely filed. Thus, the judge had no occasion to address the issue of whether Rodgers was prejudiced by the delay of fifteen months. Because the issue of prejudice encompasses factual determinations, see Niese v. Klos, 216 Va. 701, 704, 222 S.E.2d 798, 801 (1976), I would direct the trial judge to consider on remand that issue.

Likewise, the statement of facts establishes only that “Kendall [was] ... the foreman on site.” The record does not contain any further evidence upon which we might conclude that the trial judge erred in excluding Kendall’s out-of-court statements. I find no evidence in the record to support a conclusion that Kendall was authorized to speak for the corporation. See Monacan Hills v. Page, 203 Va. 110, 116, 122 S.E.2d 654, 658 (1961) (holding that statements of an agent are admissible only if evidence proves the agent has authority to bind the corporation and the agent is speaking in respect to matters within the agent’s scope of authority). I agree with the majority opinion that the statement of facts does not contain a proffer of the excluded testimony. Therefore, we [63]*63have no basis upon which to conclude that the trial judge erred in sustaining the objection.

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537 S.E.2d 620, 34 Va. App. 50, 2000 Va. App. LEXIS 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barr-v-sw-rodgers-co-inc-vactapp-2000.

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