
    CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Toots, Inc. v. George L. Brockett et al.
    October 28, 1987
    Case No. (Chancery) C86-1371
   By JUDGE AUSTIN E. OWEN

By letter of October 26, 1987, [the commissioner in chancery sought] instruction from the court as permitted by Virginia Code Section 8.01-613 concerning the request of certain defendants to introduce evidence after all parties have rested.

As noted by Professor Friend in The Law of Evidence in Virginia, Second Edition, section 4, page 11, it is within the discretion of the court whether to permit a party to introduce evidence after having rested.

Because of [the commissioner’s] intimate involvement with all aspects of the proceeding since the reference from this court, [he] is in the best position to determine the proper exercise of that discretion.

The information available to me is limited to the contents of [the] letter and would indicate, on the one hand, that defendants had the opportunity to present evidence on May 18, 1987. From that date, the matter was continued for a limited purpose, but defendants and their new counsel were apparently not limited in their opportunity to present any evidence they desired at the further hearing held on October 7, 1987. These factors might tend to indicate that defendants’ request to offer additional evidence should not be granted.

On the other hand, the request to present additional evidence followed the most recent hearing by not more than fifteen days and came before the filing of any report. It is represented that the additional evidence would consist not only of an expert appraisal substantially higher than the figure(s) presently in evidence, but also of an offer to purchase the property at the increased appraised value. The opportunity to sell the property for the highest possible sum would seem to be in the interest of all parties, and might tend to indicate that defendants’ request should be granted.

If the foregoing are the only material factors bearing on the issue, I would be inclined, were the issue directly before me, to grant the opportunity to present the additional evidence provided defendants and their counsel are prepared to promptly present the same after reasonable notice of a hearing date set by [the] commissioner.

After consideration of all relevant factors, [the commissioner] should exercise [his] sound discretion in determining whether to grant defendants’ request.  