Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell and 

Koontz, JJ., and Poff, Senior Justice 

LEE GARDENS ARLINGTON LIMITED PARTNERSHIP 

 OPINION BY 

v. Record No. 950305 SENIOR JUSTICE RICHARD H. POFF 

 November 3, 1995 

ARLINGTON COUNTY BOARD, ET AL. 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N.A. Kendrick, Judge 

 This is a taxpayer's appeal from a judgment upholding a tax 

assessment of Sheffield Court Apartments, a large garden 

apartment complex owned by Lee Gardens Arlington Limited 

Partnership (Lee Gardens, or the taxpayer). 

 On January 16, 1992, the property was valued at $33,719,278. 

 The County Board of Arlington County (the County) approved a 

partial exemption for rehabilitation which reduced the assessed 

value to $24,539,900. In October, based upon a review of a 

three-year history of Sheffield Court's report of operating 

income and expense and a redetermination of its net operating 

income, the County raised the January assessment to $26,896,600. 

 In December 1993, Lee Gardens filed an application under 

Code §§ 58.1-3984 and -3987 to correct the revised assessment and 

to require a refund of overpayment. Lee Gardens alleged that the 

1992 assessment "does not reflect the fair market value of the 

property [and] . . . is not uniform in its application." The 

County filed a counterclaim asking the court to increase the 

assessment to $28,139,800 "based on actual net operating income 

. . . data . . . not received . . . until after the 1992 

assessment was made." 

 During discovery, Lee Gardens requested disclosure of tax 
assessment worksheets used by the County, and the County filed a 

request for disclosure of certain taxpayer records. The trial 

court denied the taxpayer's request and, in part, the County's 

request. 

 As its final witness at trial, Lee Gardens introduced George 

Byrne, a private tax consultant, and asked the court to qualify 

him as an expert in valuation of commercial real estate and 

review of assessments. Byrne was not licensed as an appraiser, 

and the court ruled that he was ineligible to testify as an 

expert witness. 

 Lee Gardens moved for a continuance. The court denied the 

motion. The taxpayer moved for nonsuit, and the County moved to 

strike the taxpayer's evidence. The court denied Lee Gardens' 

motion and granted the County's motion to strike the evidence. 

Thereupon, the County nonsuited its counterclaim. 

 We awarded Lee Gardens an appeal, and we will consider the 

three questions raised by its assignments of error. 

 I 

 First, we address the question whether the trial court erred 

in denying the taxpayer's discovery request. 

 The assessment formula employed here is called 

"capitalization of net operating income". Under that formula, 

operating expenses are subtracted from operating income, and a 

capitalization rate is applied to the difference to determine the 

assessment. As operating income remains constant, the quantum of 

the assessment will vary according to changes in the operatingexpense factor. 

 In its application of the assessment formula, the County 
created a set of "guidelines" of income and expenses. The set 

includes different guidelines for different types of taxable 

properties. Thomas Rice, director of the County's department of 

assessments, testified that the guidelines were used as "the 

first indication on the value"; that the appraisal staff 

"examines each of the indications of value produced by those 

guidelines . . . the experience of the property, its history as 

reported"; that the staff "has the latitude of adjusting those 

guideline numbers . . . to reflect the operation of the 

particular property"; and that, absent such "historical . . . 

information, the last resort for the county is to rely on the 

guidelines". 

 Rice said that the guidelines were not applied to Sheffield 

Court because its history of operation showed "higher rent" and 

"lower expenses" than those "indicated by the guidelines", and 

that no apartment complex with a history of income and expenses 

like those of Sheffield Court had been assessed by applying the 

guidelines. As appears from the County's response to a request 

for admissions, approximately 40 percent of 1992 appraisals of 

large garden apartment complexes did not apply the guidelines. 

Rice testified further that the guidelines were not applied when 

actual expenses were historically higher than the guidelines. 

 Lee Gardens argues on brief that use of actual expenses 

lower than guidelines "results in a . . . higher assessment" and 

that "this method . . . is not uniform in application." Lee 

Gardens also contends that the County's use of actual expenses 

higher than the guidelines "is directly relevant to the nonuniformity basis of the taxpayer's claim." Consequently, Lee 
Gardens reasons, the trial court committed reversible error when 

it denied its discovery motion. That motion requested disclosure 

of County "tax worksheets for all commercial properties whose 

expenses exceeded those for the guidelines, and whose actual, or 

stabilized, expenses were used to compute net operating income." 

 Under Code § 58.1-3, income and expense information 

taxpayers provide tax officials is confidential, and any 

disclosure made without a court order is a Class 2 misdemeanor. 

Rule 4:1(b)(1) authorizes a trial court to order discovery 

"regarding any matter, not privileged, which is relevant to the 

subject matter involved", including any information "reasonably 

calculated to lead to the discovery of admissible evidence." 

With respect to the recipient of a discovery order, Rule 4:1(c) 

empowers the court to "make any order which justice requires to 

protect a party or person from . . . undue burden or expense, 

including one . . . that . . . confidential . . . commercial 

information not be disclosed". 

 The record shows that the County assesses "approximately 

1000 parcels of real estate which are classified as apartment 

properties", including "some 500 plus . . . apartment complexes" 

with a total of "some 40,000 apartment units in Arlington 

County". Lee Gardens' discovery request embraced not only 

apartment properties, but "tax worksheets for all commercial 

properties" in Arlington County. 

 "All taxes . . . shall be uniform upon the same class of 

subjects". Va. Const. art. X, § 1. The constitutional mandate 

requires uniformity in the assessment of "properties having like 

characteristics and qualities, located in the same area." Smith 
v. City of Covington, 205 Va. 104, 108, 135 S.E.2d 220, 223 

(1964). Obviously, Lee Gardens' discovery request extends to a 

"class of subjects" with "characteristics and qualities" unlike

apartment complexes and whose histories of income and expense are 

unlike that experienced by Sheffield Court. 

 The trial court's order denying Lee Garden's request was 

based upon the court's finding that the request was "overbroad, 

burdensome and not reasonably calculated to lead to the discovery 

of admissible evidence". Citing Rakes v. Fulcher, 210 Va. 542, 

546, 172 S.E.2d 751, 755 (1970), Lee Gardens acknowledges on 

brief that "[t]he granting or denying of a request for discovery 

is a matter within the trial court's discretion and will be 

reversed only if the action taken was improvident, and affected 

substantial rights." 

 We are of opinion that the trial court's finding is 

supported by the record and complies with the provisions of Rule 

4:1. Consequently, we cannot say that the order denying Lee 

Gardens' disclosure request was an abuse of the court's 

discretion, and we will affirm the order denying that request. 

 II 

 Next, we consider whether a person unqualified to obtain an 

appraiser's license can testify as an expert witness on real 

estate valuation. 

 On voir dire, Byrne acknowledged that he was a tax 

consultant under contract with Lee Gardens' attorney; that he was 

being compensated for his testimony; that he would testify as to 

the value of Sheffield Court; and that he did not have a Virginia 

real estate appraiser's license. Asked if he was "qualified to 
get a license", Byrne replied, "I don't have the course work." 

Sustaining the County's objection, the trial court ruled that 

Byrne "can't be qualified [as an expert witness] without a 

license." 

 The question in issue is a matter of first impression in 

this Court. However, the Attorney General of Virginia has issued 

an opinion relevant to that issue. Op. Att'y Gen. 211 (1993). 

Construing the applicable statutes in Chapter 20.1 of Title 54.1 

of the Code, the Attorney General concluded that 

 it is unlawful [under Code § 54.1-2011(A)] for anyone, 

including a licensed real estate broker, who does not 

have a real estate appraiser's license to testify for 

compensation about the value of real estate in any 

court proceeding, unless permitted under applicable 

statutory exceptions. 

Id. at 212. 

 That conclusion was based, the Attorney General explained, 

upon the "clear language" of § 54.1-2011(A) which provides that 

"it shall be unlawful to engage in the appraisal of real estate 

. . . for compensation" and upon the "plain language" of § 54.1-

2009 under which, the Attorney General said, "an 'appraisal' 

includes any opinion or conclusion about the value of interest in 

real property. An appraisal report may be either oral or 

written. A broker's testimony in a . . . court proceeding, 

therefore, clearly falls within this definition of an 

'appraisal'." 

 Lee Gardens contends that the statutory exception defined in 

Code § 54.1-2010(3) "clearly applies to Mr. Byrne." That 

subsection of the statute creates an exception for "[a]ny person 

who, in the ordinary course of business, provides consulting 

services . . . for a fee". Construing that language, the 
Attorney General decided: 

 In ordinary usage, "consulting" is defined as 

"providing professional or expert advice." Webster's 

Ninth New Collegiate Dictionary 282 (1990). It is not 

clear that this definition is broad enough to include 

paid testimony in court, which goes beyond mere advice 

to the property owner paying for the testimony. In 

view of the rule of strict construction that applies to 

exemptions from licensing statutes, therefore, it is my 

opinion that § 54.1-2010(3) does not except a real 

estate broker's testimony from the general prohibition 

in § 54.1-2011(A). 

Id. at 213. 

 In City of Winchester v. American Woodmark Corporation, 250 

Va. ___, ___, ___ S.E.2d ___, ___ (1995), we said: 

 [W]e have repeatedly held that the General Assembly is 

presumed to have knowledge of the Attorney General's 

interpretation of statutes and the General Assembly's 

failure to make corrective amendments evinces 

legislative acquiescence in the Attorney General's 

interpretation. Browning-Ferris, Inc. v. Commonwealth, 

225 Va. 157, 161-62, 300 S.E.2d 603, 605-06 (1983); 

Richard L. Deal and Assoc. v. Commonwealth, 224 Va. 

618, 622, 299 S.E.2d 346, 348 (1983); Albemarle County 

v. Marshall, 215 Va. 756, 762, 214 S.E.2d 146, 150 

(1975). 

 The Attorney General's statutory analysis of the Code 

Chapter entitled "Real Estate Appraisers" was published August 

18, 1993. In 1994, the General Assembly amended Code § 8.01-

401.1 entitled "Opinion testimony by experts." Acts 1994, c. 

328. Had the legislature intended to make "corrective 

amendments" to Chapter 20.1 of Title 54.1 enacted in 1990, it 

could have done so. It did not. 

 We share the Attorney General's analysis of the applicable 

statutes, and we will affirm the trial court's ruling that Byrne 

was ineligible to testify as an expert witness. 

 III 

 Finally, we must decide whether the trial court erred in 
denying Lee Garden's motion for nonsuit. 

 "A party shall not be allowed to nonsuit a cause of action, 

without the consent of the adverse party who has filed a 

counterclaim, . . . unless the counterclaim . . . can remain 

pending for independent adjudication by the court." Code § 8.01-

380(C). Absent the County's consent, the dispositive question is 

whether the County's counterclaim seeking an increase in the 

assessment could have remained pending on the docket for 

independent adjudication after Lee Gardens' claim seeking a 

decrease in assessment had been nonsuited. 

 Subsection B of Code § 58.1-3984 affords the commissioner of 

revenue of a county or city the same right to initiate litigation 

of a tax assessment as that afforded a taxpayer by subsection A 

of that statute. Lee Gardens concedes on brief that, to increase 

an under assessment, "the county's only recourse . . . is to 

petition the Circuit Court for an increase in the assessment, 

pursuant to sec. 58.1-3984(B)". The County did not pursue that 

course. Instead, it chose to assert an under-assessment claim in 

litigation initiated by the taxpayer's over-assessment claim. 

 Fair market value was the ultimate issue common to both 

claims. The County's counterclaim could not remain pending on 

the docket for an adjudication independent of an adjudication of 

the taxpayer's nonsuited claim; an adjudication of one claim 

would be an adjudication of both. Accordingly, we will uphold 

the trial court's ruling that Lee Gardens was not entitled to 

nonsuit its claim without the County's consent. 

 IV 

 Finding no merit in Lee Gardens' assignments of error, we 
need not address the County's assignment of cross-error, and we 

will affirm the judgment of the trial court. 

Affirmed.