PRESENT: All the Justices 

JAMES M. RAMSEY, JR., ET AL. 

 OPINION BY 

v. Record No. 140929 JUSTICE CLEO E. POWELL 

 APRIL 16, 2015 

COMMISSIONER OF HIGHWAYS 

FROM THE CIRCUIT COURT FOR THE CITY OF VIRGINIA BEACH 

William R. O’Brien, Judge 

 James M. Ramsey, Jr. and Janet D. Ramsey (“landowners”) 

appeal from a final order entered April 21, 2014 in a 

condemnation proceeding instituted against them by the 

Commissioner of Highways (“Commissioner”). 

I. BACKGROUND 

In 2009, the Commissioner sought to acquire a .387-acre 

portion of landowners’ property to facilitate road improvements 

to Route 264 in the City of Virginia Beach, Virginia. Before 

making an offer, the Commissioner ordered an appraisal of the 

property as outlined in Code §§ 25.1-204 and -417. Thomas M. 

Savage (“Savage”) completed this appraisal on August 24, 2009, 

valuing the entire property before acquisition at $500,000, and 

just compensation for the to-be acquired portion, including 

damages, at $246,292. The Commissioner then attempted to 

purchase the property directly from the landowners, but was 

unsuccessful. 

On December 7, 2009, the Commissioner filed a Certificate 

of Take with the trial court, certifying that the Commissioner 
2

deposited $248,707 with the clerk of court as the Commissioner’s 

estimated fair value of the property sought to be acquired. The 

landowners withdrew the money from the clerk of court. On June 

4, 2010, the Commissioner filed a Petition in Condemnation, 

seeking an order confirming that the title to the desired 

portion of property vested in the Commonwealth, and requesting 

that a jury ascertain the value of the property. 

The Commissioner hired Lawrence J. Colorito, Jr. 

(“Colorito”) to conduct a second appraisal of the property 

because Savage had retired. Colorito completed his appraisal on 

September 5, 2012. He testified as an expert witness at trial 

February 10-11, 2014. Colorito assessed the market value of the 

landowners’ property at $250,000 and just compensation for the 

acquired portion, including damages, at $92,127. Due to the 

fact that the Virginia Department of Transportation (“VDOT”) had 

already completed the improvements to Route 264 on the property, 

Colorito adopted a $3,000 value of landscaping from Savage’s 

appraisal into his own appraisal. 

During trial, the landowners sought to have Savage’s 

appraisal admitted into evidence. The trial court denied 

admission of the appraisal, but allowed limited crossexamination of Colorito regarding the existence of Savage’s 

appraisal and Colorito’s adoption of the landscaping value from 

Savage’s appraisal. Landowners proffered testimony that the 
3

only places in the Savage appraisal where the $3,000 figure 

appeared were on pages 2 and 32. Notably, the pages also 

contained Savage’s determination that the value of the land was 

$7 per square foot and that total estimated market value of the 

property to be acquired was $246,292. The trial court excluded 

these pages from evidence. 

 Also during trial, the landowners proffered that the 

Commissioner gave them the Savage appraisal showing that their 

entire property was valued at $500,000. The landowners 

proffered that the appraisal was given to them prior to the 

Commissioner making an offer to purchase a portion of the 

property. The landowners claimed that the Savage appraisal was 

a pre-condemnation statement, and should be admissible as an 

admission by the Commissioner. The Commissioner argued that the 

Savage appraisal was made as part of an attempt to compromise 

during settlement negotiations and, as such, was inadmissible. 

The trial court held that the Savage appraisal was an offer 

to settle and was not admissible as a party admission or 

otherwise. The trial court noted that the legislature’s intent 

in statutorily requiring disclosure of the information prior to 

a taking was to encourage settlement and evidence related to 

settlement discussions is inadmissible at trial. 

 The jury report found just compensation for the landowners’ 

property to be $234,032. The landowners filed their exceptions 
4

to the jury’s report. The trial court then issued a final order 

confirming the jury report, holding that title in the relevant 

portion of the landowners’ real estate vested in the 

Commonwealth, and ordering the landowners to repay the 

Commissioner $14,675, plus 3% interest from January 7, 2011. 

This appeal followed. 

II. ANALYSIS 

 On appeal, the landowners contend the trial court erred in 

refusing to admit oral and written evidence of the property 

value as determined in the Savage appraisal. The landowners 

assert that the trial court erroneously treated the Savage 

appraisal as part of the actual offer. The landowners rely on 

the fact that the Savage appraisal was completed before any 

offer was made by the Commissioner to purchase the property and 

before the Commissioner filed the Certificate of Take with the 

trial court. 

 “‘Generally, we review a trial court’s decision to admit or 

exclude evidence using an abuse of discretion standard and, on 

appeal, will not disturb a trial court’s decision . . . absent a 

finding of abuse of that discretion.’” Dean v. Board of County 

Supervisors, 281 Va. 536, 540, 708 S.E.2d 830, 832 (2011) 

(quoting Avent v. Commonwealth, 279 Va. 175, 197, 688 S.E.2d 

244, 256 (2010)). However, the issue raised by the landowners 

is essentially a matter of statutory construction which we 
5

review de novo. Hale v. Board of Zoning Appeals, 277 Va. 250, 

269, 673 S.E.2d 170, 179 (2009). “[U]nder settled principles of 

statutory construction, we are bound by the plain meaning of the 

statutory language.” Id. 

 In an eminent domain proceeding, a condemnor must make “a 

bona fide but ineffectual effort to purchase from the owner the 

property to be condemned.” Code § 25.1-204(A). “Before

initiating negotiations for real property, the state agency 

shall establish an amount which it believes to be just 

compensation therefor and shall make a prompt offer to acquire 

the property for the full amount so established.” Code 

§ 25.1-204(E)(1)(emphasis added).1 “Real property shall be 

appraised before the initiation of negotiations. . . .” Code 

§ 25.1-417(A)(2)(emphasis added). 

The record demonstrates that the landowners were given the 

Savage appraisal, showing that the value of their entire 

property was $500,000, prior to the time any offer to purchase 

was made and/or settlement negotiations were initiated. The 

landowners rely on United States v. 320.0 Acres of Land, 605 

F.2d 762 (5th Cir. 1979) for the proposition that the Savage 

appraisal was admissible into evidence as pre-condemnation party 

 1

 Code § 25.1-204 was amended in 2011. 2011 Acts ch. 117. 

We apply the former version of the Code section to this case as 

the Certificate of Take and the Petition in Condemnation were 

filed prior to the effective date of the revisions to Code 

§ 25.1-204. 
6

admissions by the Commissioner. In 320.0 Acres of Land, the 

landowners sought to introduce into evidence the 42 U.S.C. 

§ 46512 statements of just compensation given to them by the 

Federal agency seeking to condemn their property. The Fifth 

Circuit noted that the § 4651 statements were admissible because 

“[t]echnically, at the time the statements are provided, there 

is no disputed claim, and hence no settlement negotiations of a 

disputed claim.” 320.0 Acres of Land, 605 F.2d at 824-25. The 

Fifth Circuit held that “if § 4651 statements of just 

compensation are provided a prospective condemnee, they are 

admissible at a subsequent compensation trial as an admission, 

once it becomes known that at trial the Government is valuing 

the property at a lower figure.” Id. at 825. See also

Department of Transp. v. Frankenlust Lutheran Congregation, 711 

N.W.2d 453, 462 (Mich. Ct. App. 2006)(“[A] landowner may, if the 

condemning authority seeks to establish a lower valuation for 

the property at trial, introduce evidence of the higher, 

precondemnation valuation for the purpose of rebutting the 

authority’s lower valuation.”). We agree with this logic, which 

is consistent with the language adopted by the General Assembly. 

 In the present case, the Savage appraisal was prepared 

“before the initiation of negotiations” as required by the plain 

 2

 Code § 25.1-417 closely resembles 42 U.S.C. § 4651 which 

provides, in pertinent part, that “(2) Real property shall be 

appraised before the initiation of negotiations. . . .” 
7

language of Code § 25.1-417(2). The landowners were given the 

fair market value figure of $500,000 from the pre-settlement 

Savage appraisal prior to the Commissioner’s offer to purchase 

and prior to the beginning of settlement negotiations. The 

plain language of Code § 33.2-1023(H) also supports the logic 

that the appraisal is admissible. While Code § 33.2-1023(H) 

bars the admission into evidence of any amount deposited with 

the trial court with a Certificate of Take, nothing in Code 

§§ 25.1-204 or -417 bars the admission of the fair market value 

of the entire property determination in the pre-settlement 

appraisal. Had the General Assembly intended to exclude such 

evidence, it could have plainly said as much. 

 Relying on Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959) 

and Duncan v. State Highway Comm’n, 142 Va. 135, 128 S.E. 546 

(1925), the Commissioner argues that the Savage appraisal is 

inadmissible because the offer to purchase the property and the 

Certificate of Take amounts both came from that appraisal. Our 

interpretation and application of the pertinent statutes in this 

case is not inconsistent with our previous holdings in Ryan and 

Duncan. Both of those cases focused on the inadmissibility of 

offers to purchase at trial. “[O]ffers made by the condemning 

party to the owner are in the nature of an attempt to compromise 

and cannot be proved.” Ryan, 201 Va. at 84, 109 S.E.2d 413-14 

(citing Duncan, 142 at 141, 128 S.E. at 548). Neither Ryan nor 
8

Duncan addressed the admissibility of a pre-settlement appraisal 

of a property’s fair market value. 

 The Commissioner further asserts that admission of the 

Savage appraisal would be too prejudicial. We disagree. “All 

relevant evidence is admissible. . . .” Va. R. Evid. 2:402(a). 

However, “[e]vidence that is factually relevant may be excluded 

from the jury’s consideration if the probative value of that 

evidence is substantially outweighed by the danger of unfair 

prejudice.” Gamache v. Allen, 268 Va. 222, 227, 601 S.E.2d 598, 

601 (2004). Here, the $500,000 fair market value for the entire 

property contained in Savage’s pre-settlement appraisal was 

relevant evidence that was not unfairly prejudicial. 

 The purpose of the eminent domain procedure is to 

compensate landowners for the value of the property the 

Commissioner seeks to condemn. 

“Compensation should be awarded upon the 

basis of the most advantageous and valuable 

use of the land, or, stated differently, its 

highest and best use, having regard to the 

existing business demands of the community 

or such as may reasonably be expected in the 

near future. Compensation must be a full 

and perfect equivalent for the property.” 

Appalachian Power Co. v. Anderson, 212 Va. 705, 708, 187 S.E.2d 

148, 152 (1972) (citing Appalachian Elec. Power Co. v. Gorman, 

191 Va. 344, 354, 61 S.E.2d 33, 38 (1950)). The probative value 

of the fact that the Savage appraisal valued the entire property 
9

at twice the amount at which Colorito valued the property 

outweighs any prejudice to the Commissioner. “Permitting the 

landowner to dispute a condemning authority’s contention of a 

lower value at trial . . . ‘will serve as a limited [and wholly 

appropriate] check on the broad powers of the State in 

condemnation proceedings.’” Frankenlust Lutheran Congregation, 

711 N.W.2d at 462 (alterations in original) (quoting Thomas v. 

State, 410 So. 2d 3, 4 (Ala. 1981)). “[A]s recognized by the 

court in 320.0 Acres, [605 F.2d] at 825, ‘as [is] generally true 

of all admissions, [the condemning authority’s precondemnation 

determination of value] is not binding, and the Government is 

free to explain [at trial] why it now believes its earlier 

appraisal to be inaccurate.’” Id. at 461 (alterations in 

original). 

 Accordingly, the trial court erred in finding that the 

Commissioner’s statement valuing the property at $500,000 was an 

offer to settle and, as such, was inadmissible at trial. Our 

holding is limited to the issue of whether the eminent domain 

statutes forbid admission of otherwise admissible evidence of 

value like the evidence proffered in this case. Given the trial 

court’s contrary holding, it found it unnecessary to address 

whether the proffered evidence was admissible under the Virginia 
10

Rules of Evidence.3 We, too, find it unnecessary because we 

cannot speculate concerning how the landowners may seek to 

introduce evidence of value on remand. Because we hold the 

trial court erred, we need not address appellant’s remaining 

issues. 

III. Conclusion 

 For the foregoing reasons, we will reverse the judgment of 

the trial court and we will remand the matter for further 

proceedings. 

Reversed and remanded. 

 3

 On remand for retrial, the trial court should apply 

applicable rules of evidence to any proffered evidence.