PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Stephenson, S.J.

FIRST BANK AND TRUST COMPANY
                                           OPINION BY
v.   Record No. 010592   SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
                                         March 1, 2002
COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA

           FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
                  Charles B. Flannagan, II, Judge

      The dispositive issue in this appeal in an eminent domain

proceeding is whether the trial court erred in the per se

disqualification of all customers of the landowner from serving

as commissioners.

                                  I

      On November 24, 1997, the Commonwealth Transportation

Commissioner of Virginia (the Commonwealth) condemned, as part

of a project to improve an interstate highway, a 0.571-acre

parcel of land owned by First Bank and Trust Company (the Bank)

in the City of Bristol.   The trial court conducted a voir dire

proceeding to select and empanel commissioners who would serve

to determine just compensation for the condemned property, on

which was located a branch office of the Bank.   Among the names

of prospective commissioners submitted to the court were four

customers of the Bank.    The voir dire examination revealed that

none of these customers had any interest in the condemned

property or in the outcome of the proceeding, that they knew
nothing about the case, that they had not formed or expressed an

opinion regarding the case, that they did not have any bias or

prejudice for or against either party in the matter, and that

they could make a fair and impartial award according to the law

and the evidence presented.   Nonetheless, the trial court ruled,

over the Bank's objection, that all Bank customers were per se

disqualified from serving as commissioners.

     On August 3, 2000, following a trial to determine just

compensation, the commissioners filed a report fixing just

compensation of $475,000.   On August 10, 2000, the Bank filed an

objection to and motion to set aside the commissioners' report

on several grounds, including the court's per se

disqualification of all Bank customers.   On January 10, 2001,

the trial court entered a final order overruling the Bank's

objection and motion and confirming the commissioners' report.

This appeal ensued.

                                II

                                 A

     We first determine what standard we will employ in

reviewing the trial court's ruling.   Generally, a trial court is

given discretionary authority to determine whether a prospective

commissioner should be stricken for cause.    See, e.g., City of

Virginia Beach v. Giant Sq. Shopping Ctr., 255 Va. 467, 471, 498

S.E.2d 917, 919 (1998); Commonwealth Transp. Comm'r v. Chadwell,


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254 Va. 302, 305, 491 S.E.2d 723, 725 (1997).   Relying upon this

principle of law, both parties in the present case contend that

our standard for reviewing the trial court's ruling is whether

the court abused its discretion in striking the prospective

commissioners because they were Bank customers.   We do not

agree.

     In so ruling, the trial court did not exercise its

discretion as to each of these prospective commissioners;

rather, it simply adopted a per se rule.   Therefore, we will

determine whether the ruling is erroneous as a matter of law.

                                 B

     In State Highway and Trans. Commr. v. Dennison, 231 Va.

239, 241, 343 S.E.2d 324, 326 (1986), the trial court refused to

strike for cause two prospective commissioners.   One of these

prospective commissioners had sold to the landowner certain

personal insurance policies, and the other had built for the

landowner several additions to a tobacco warehouse located on a

parcel of land adjacent to the condemned property.   Both

prospective commissioners stated that they had no interest,

direct or indirect, in the outcome of the case, they had not

formed any opinion about the case, and they were capable of

making a fair and impartial award according to the law and the

evidence.   Id. at 241-42, 343 S.E.2d at 326.




                                 3
      In affirming the trial court, we observed that "[n]either

[prospective commissioner] had any financial interest related to

the issue they were called upon to decide" and that "[e]ach

testified that he could serve impartially."    Id. at 243, 343

S.E.2d at 327.    Consequently, we concluded that the court did

not abuse its discretion in refusing to strike them for cause.

Id.

      Shortly thereafter, we decided State Hwy. Comm'r v.

Cardinal Realty Co., 232 Va. 434, 350 S.E.2d 660 (1986).     In

Cardinal Realty, one of the prospective commissioners stated on

voir dire that, four or five years earlier, he had "done utility

work" for the landowner.    Id. at 435, 350 S.E.2d at 661.   A

second prospective commissioner testified that he was a builder

and that, six or seven years previously, he had built houses in

a subdivision near the condemned property.    He also stated that,

in the past, he had used a realty company owned by one of the

landowner's principals to sell houses that he had built.     A

third prospective commissioner testified that one of the expert

witnesses in the case managed property owned by him, and a

fourth prospective commissioner stated that he had leased land

from the expert witness.   At the end of the voir dire, none of

these prospective commissioners indicated any inability to give

the parties a fair trial, and the trial court refused to strike

them for cause.    Id. at 436, 350 S.E.2d at 661-62.


                                  4
     In affirming the trial court's ruling, we noted that two of

the prospective commissioners had not had any dealings with the

landowner; rather, they had had dealings with one of the expert

witnesses.   Id. at 437, 350 S.E.2d at 662.   We also noted that

"[a]ll that was established about [another of the prospective

commissioners] was that in the past he had had business dealings

with the landowner."    Id. at 438, 350 S.E.2d at 662.    Finally,

with respect to the remaining prospective commissioner, we

stated the following:

          [His] testimony suggests an ongoing business
     relationship with the landowner. But, according to
     the cases relied on in Dennison, even an ongoing
     relationship does not always require that the court
     refuse to seat a commissioner. The question is
     whether the ongoing relationship is such that the
     commissioner will have a financial interest related to
     an issue the commissioner is called upon to decide.

Id. (emphasis added).

     The existence of a financial interest is what distinguishes

May v. Crockett, 202 Va. 438, 117 S.E.2d 648 (1961), from

Dennison and Cardinal Realty.    In May, a prospective

commissioner had interests in two parcels of land adjoining the

property being condemned, and one of these parcels was the

subject of a pending condemnation proceeding related to the same

highway project.   Id. at 439, 117 S.E.2d at 648-49.     We held

that the trial court should have stricken for cause the

prospective commissioner.    Id. at 441, 117 S.E.2d at 650; accord



                                  5
Commonwealth Transp. Comm'r v. Chadwell, 254 Va. 302, 305, 491

S.E.2d 723, 725 (1997).

     In the present case, there was no evidence that the Bank

customers had ongoing business relationships involving financial

interests related to issues the commissioners would decide.

Thus, we hold that the trial court erred, as a matter of law, in

applying a per se rule for striking the Bank customers.

                                 C

     The Commonwealth contends, however, that, even if the trial

court erred, such error was harmless because the record shows

that the parties had a fair trial on the merits.   The

Commonwealth relies upon Code § 8.01-678, the so-called

"harmless-error" statute.   That statute provides, in pertinent

part, that, "[w]hen . . . the parties have had a fair trial on

the merits . . . , no judgment shall be arrested or reversed

. . . for any error committed on the trial."

     We have said that commissioners in an eminent domain

proceeding perform the duties of jurors in an ad quod damnum

proceeding, and, therefore, the same rule applies to both with

regard to their qualifications to serve.   Commonwealth

Transportation Comm'r v. DuVal, 238 Va. 679, 683, 385 S.E.2d

605, 607 (1989); May, 202 Va. at 440, 177 S.E.2d at 649.    The

proper selection of jurors and commissioners is the very

foundation for a fair trial, and we are not aware of any cases,


                                 6
and none have been cited by counsel, in which we have applied

the harmless-error statute for errors committed in jury or

commissioner selection.   Therefore, we reject the Commonwealth's

harmless-error contention.

                                III

     Accordingly, we will reverse the trial court's judgment and

remand the case for a new trial. ∗

                                            Reversed and remanded.




     ∗
       We do not decide the Bank's other assignment of error
because the situation could not arise upon retrial.

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