
    CIRCUIT COURT OF FAIRFAX COUNTY
    Tysons II Development Co., L.P. v. Fairfax County Board of Supervisors
    July 7, 1997
    Case No. (Law) 148688
   By Judge Jane Marum Roush

This matter can» on to be heard on May 9, 1997, on the defendant’s "Motion to Strike Portions of Petitioner’s Identification of Expert Witnesses.” At the conclusion of die hearing, the Court took die matter under advisement The Court has now had the opportunity hilly to consider the briefs and die arguments of counsel. For the reasons stated below, die motion to strike is granted.

Facts

The facts of the case may be briefly summarized. On December 29, 1995, this case was commenced when plaintiff Tysons II Development Company Limited Partnership, filed a petition for correction of erroneous assessment against the Board of Supervisors of Fairfax County (the "County”). On May 20,1996, the plaintiff filed an amended petition to reflect the transfer of the subject property to its affiliate, Tysons II Land Company, L.L.C. (“Tysons II” or die "taxpayer”). The amended petition alleges that in 1992 die County located in Fairfax County for real estate tax purposes. Additionally, the amended petition claims that die County’s 1995 supplement of the 1992 tax assessment was inequitable because it was not assessed in a uniform manner.

Motion to Strike

The County filed a motion to strike portions of the taxpayer’s expert witness designation of Clyde Pinkston and strike in their entirety the designations of T. Michael Scott, Mark Murphy, and Peter Rosea The County claims that a prior court ruling in an earlier case involving the same parties, same parcels, same tax years, and same experts is binding on the parties in this case under the doctrine of toe "law of toe case.” See, H-L Land Improvement Venture et al. v. Fairfax County Supervisors, Law No. 114770 (a nonsuit was taken in that case with respect to the parcels at issue in this case). In that case, this Court (by Judge Gerald B. Lee) ruled:

Petitioners may not introduce as evidence at toe trial of this case any testimony other [toan] evidence related to toe costs to develop toe subject properties to a particular use or toe income that could be derived fiom toe sale or lease of such properties when developed for such use, including all evidence that relies on or is related to land to building ratios, ratios between leased office space and land, comparisons of rentals and building costs to land values, and rental rates and vacancy and absorptions rates for office space.

H-L Land Improvement Venture et al. v. Fairfax County Supervisors, Law No. 114770, Order of February 26, 1993. See, Fruit Growers Express Co. v. City of Alexandria, 216 Va. 602, 221 S.E.2d 156 (1976) (evidence of development costs and expected future income is speculative and inadmissible to establish fair market value of unimproved land).

The County maintains toe Court should recognize Judge Lee’s ruling as the “law of toe case” and strike toe portions of toe expert designations that recite opinions and facts that would not be permissible under toe earlier ruling. See, Seinman v. Clinchfield Coal Corp., 121 Va. 611, 93 S.E. 684 (1917). Additionally, toe County argues that toe Court should strike toe expect designations because they are deficient under Supreme Court of Virginia Rule 4:1(b)(4)(A)(i).

The taxpayer argues that toe Court’s ruling in Law No. 114770 is not binding because this case involves different parties and new issues. Further, the taxpayer asserts that its designations are sufficient and toe subject matter of toe designations is relevant to prove toe proper fair market value of toe parcels and toe uniformity of their assessment. Finally, Tysons II contends that the County’s objections are premature and should be raised at toe time of trial.

The Court concludes that this Court's earlier ruling in Law No. 114770 is not binding as the law of die case. See, e.g., Turner v. Wexler, 242 Va. 124, 128 (1992). Nevertheless, the Court considers Judge Lee's prior ruling persuasive and in accord with the Virginia Supreme Court’s holding in Fruit Growers.

Therefore, all testimony and other evidence related to the costs to develop the subject properties for “elevator office building” use and die rent or income that could be derived from such properties if they were so developed, including all evidence that relies on or is related to land to building ratios, ratios between leased office space and land comparisons of rents and building costs to land values, and rental rates mid vacancy and absorption rates for office space during die relevant year will be excluded from the trial as speculative. Accordingly, the motion to strike those portions of the expert witness designation of Mr. Pinkston that concern such matters is granted. Similarly, die modem to strike entirely the designations of Messrs. Scott, Murphy, and Rosen is granted, inasmuch as those witnesses' testimony appears to relate entirely to inadmissible factors.  