Johnson v. Woodard

Present: Kinser C.J., Goodwyn, Millette, and Mims, JJ., and
Carrico and Koontz, S.JJ. *

GARR N. JOHNSON, ET AL.
OPINION BY
v. Record No. 092323 JUSTICE LEROY F. MILLETTE, JR.
March 4, 2011
GREGORY WOODARD, ET AL.

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Westbrook J. Parker, Judge Designate

In this appeal, we consider whether the circuit court

erred in imposing sanctions against forty Gloucester citizens

(the petitioners) who submitted petitions in the circuit court

seeking the removal of four members (the supervisors) of

Gloucester County’s seven member Board of Supervisors pursuant

to Code §§ 24.2-233 and 24.2-235. Although the petitioners

raise a number of issues, we address only two issues that are

dispositive of this appeal. First, whether the circuit court

retained jurisdiction beyond 21 days to consider a motion for

sanctions after entry of a nonsuit order which stated that the

court was retaining jurisdiction and that it was not a final

order for purposes of Rule 1:1. Second, whether the

petitioners were parties to the removal action such that they

may be subject to sanctions pursuant to Code § 8.01-271.1. We

hold that the circuit court had jurisdiction to consider the

*
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
motion for sanctions, but erred in imposing sanctions against

the petitioners because they were not parties to the removal

action.

I. BACKGROUND

The petitioners submitted petitions pursuant to Code

§§ 24.2-233 and 24.2-235 seeking to remove the supervisors from

office. 1 The petitions were signed by the petitioners and also

were signed by ten percent of the registered voters who voted

in the last election for the Gloucester County Board of

Supervisors. The petitions alleged that the supervisors

engaged in conduct that amounted to a “neglect of duty, misuse

of office, or incompetence in the performance of duties.” At

the time the petitions were submitted in the circuit court, the

1
Code § 24.2-233, entitled “Removal of elected and certain
appointed officers by courts,” provides in pertinent part:

Upon petition, a circuit court may remove from
office any elected officer or officer who has been
appointed to fill an elective office, residing within
the jurisdiction of the court:

1. For neglect of duty, misuse of office, or
incompetence in the performance of duties
when that neglect of duty, misuse of
office, or incompetence in the performance
of duties has a material adverse effect
upon the conduct of the office.

Code § 24.2-235, entitled “Procedure,” establishes the
procedure for initiating a removal action, and provides that
once a petition is filed in the circuit court, “the court shall
issue a rule requiring the officer to show cause why he should
not be removed from office.”
2
supervisors were under criminal indictments for, among other

things, violating the Virginia Freedom of Information Act. The

petitions cited the allegations made in the indictments as a

basis for removal pursuant to Code § 24.2-233.

After the petitions were filed, the circuit court issued

rules to show cause against the supervisors as required by Code

§ 24.2-235. The circuit court appointed a special prosecutor

to litigate the removal action, and to prosecute the

supervisors on the criminal charges alleged in the indictments.

The criminal charges against the supervisors were later

dismissed upon a motion to dismiss filed by the special

prosecutor.

The special prosecutor then moved to nonsuit the removal

action. During a hearing on the motion to nonsuit, the special

prosecutor first stated that the motion was made strictly on

procedural grounds, that the signatures of the petitioners were

not executed under penalty of perjury, and that the grounds for

removal were not stated with reasonable accuracy and detail.

However, the special prosecutor added that witnesses who were

initially cooperative were no longer cooperative. Based upon

the information that he had from the witnesses, the special

prosecutor stated that while there were “bad decisions” made,

there were “no criminal acts” committed by the supervisors, and

that he believed the case would not withstand a motion to

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strike. The circuit court granted the motion and entered an

order entitled “ORDER OF NONSUIT” (the nonsuit order). The

nonsuit order stated, in part:

[It is] ORDERED that, for purposes of Rule 1:1,
this is not a final order, in that this Court shall
retain jurisdiction of this matter to consider any
application for attorney’s fees and costs and such
other relief as may be sought.

After entry of the nonsuit order, the supervisors filed an

application for attorney’s fees and costs pursuant to Code

§ 24.2-238, and a motion for sanctions against the petitioners

pursuant to Code § 8.01-271.1. During a hearing on these

motions, the circuit court stated that he had “never seen more

of a misuse of the judicial system” in his 23 years as a judge.

The circuit court awarded the supervisors attorney’s fees and

costs pursuant to Code § 24.2-238. 2 The court also ordered that

each petitioner pay $2,000 as a sanction for violating Code

2
In 2009, after the resolution of this case in the circuit
court, the General Assembly amended Code § 24.2-238. The
amendment prohibits the imposition of attorney’s fees, costs,
and sanctions on persons who sign removal petitions. The
amendment states:

No person who signs a petition for the removal
of an official pursuant to § 24.2-233 or who
circulates such a petition (i) shall be liable for
any costs associated with removal proceedings
conducted pursuant to the petition, including
attorney fees incurred by any other party or court
costs, or (ii) shall have sanctions imposed against
him pursuant to § 8.01-271.1.

2009 Acts chs. 868, 876.
4
§ 8.01-271.1. The June 2, 2009 order awarding attorney’s fees

and costs and imposing sanctions was entered well more than 21

days after the November 19, 2008 nonsuit order. We granted the

petitioners this appeal.

II. DISCUSSION

A. Jurisdiction

The petitioners argue that the nonsuit order was a final

order for purposes of Rule 1:1, and thus the circuit court lost

jurisdiction over the case 21 days after its entry.

Accordingly, the petitioners contend that the circuit court did

not have jurisdiction to award the supervisors attorney’s fees

and costs or to impose sanctions against the petitioners

because the circuit court’s order awarding attorney’s fees and

costs and imposing sanctions was entered more than 21 days

after entry of the nonsuit order. We disagree.

Under Rule 1:1, “[a]ll final judgments, orders, and

decrees . . . shall remain under the control of the trial court

and subject to be modified, vacated, or suspended for twenty-

one days after the date of entry, and no longer.” In

Williamsburg Peking Corp. v. Kong, 270 Va. 350, 619 S.E.2d 100

(2005), we discussed Rule 1:1 and a circuit court’s

jurisdiction in a case in which a plaintiff moved for a nonsuit

when confronted with a motion for sanctions.

5
 In Williamsburg Peking, the circuit court granted the

plaintiff’s motion for a nonsuit, but refused to consider the

defendant’s pending motion for sanctions, concluding that it no

longer had jurisdiction after granting the plaintiff’s motion

for a nonsuit. Id. at 352, 619 S.E.2d at 101. In reversing

the judgment of the circuit court, we stated that “an order

granting a nonsuit should be subject to the provisions of Rule

1:1,” and, as such, “like all final judgments, [the nonsuit

order] remained under the control and jurisdiction of the trial

court for 21 days after the date of entry.” Id. at 354, 619

S.E.2d at 102 (internal quotation marks and citations omitted).

Recognizing that a motion for sanctions “has no bearing on the

facts giving rise to a right to seek judicial remedy,” we

concluded that “the entry of a nonsuit order does not conclude

a case as to any pending motion for sanctions.” Id.

Accordingly, we stated that under the facts of the case, the

circuit court was “empowered to consider the sanctions motion

either before the entry of the nonsuit order or within 21 days

after the entry of the nonsuit order.” Id. at 355, 619 S.E.2d

at 102-03.

Thus, our decision in Williamsburg Peking holds that a

circuit court retains jurisdiction to consider a party’s motion

for sanctions for 21 days after entry of a nonsuit order.

However, in this case, unlike in Williamsburg Peking, the

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nonsuit order explicitly stated the circuit court’s intent to

retain jurisdiction to consider the motion for sanctions beyond

the 21-day period in Rule 1:1. The supervisors argue that this

language in the nonsuit order was sufficient to retain

jurisdiction beyond the 21-day period in Rule 1:1. We agree.

In Super Fresh Food Markets of Virginia, Inc. v. Ruffin,

263 Va. 555, 558, 561 S.E.2d 734, 735 (2002), we addressed “the

requirements of Rule 1:1 to extend the time within which a

final judgment remains under the control of the trial court.”

In Super Fresh, we stated:

Rule 1:1 facially contemplates the existence of
a final judgment that a court subsequently seeks to
modify, vacate, or suspend. The rule is not
applicable prior to the entry of a final judgment,
and the twenty-one day time period contained in the
rule does not delay the finality of a judgment.
Thus, when a trial court enters an order, or decree,
in which a judgment is rendered for a party, unless
that order expressly provides that the court retains
jurisdiction to reconsider the judgment or to address
other matters still pending in the action before it,
the order renders a final judgment and the twenty-one
day time period prescribed by Rule 1:1 begins to run.

Id. at 561, 561 S.E.2d at 737.

Thus, Super Fresh holds that a circuit court may avoid the

application of the 21 day time period in Rule 1:1 by including

specific language stating that the court is retaining

jurisdiction to address matters still pending before the court.

In the present case, the nonsuit order explicitly stated the

court’s intent to retain jurisdiction over the case: “this

7
Court shall retain jurisdiction of this matter to consider any

application for attorney’s fees and costs.” The nonsuit order

also stated that “for [the] purposes of Rule 1:1, this is not a

final order.” Under our holding in Super Fresh, the nonsuit

order was not a final order under Rule 1:1 because the language

was sufficient for the court to retain jurisdiction to consider

the motions for attorney’s fees and costs and sanctions. We

therefore hold that the circuit court had jurisdiction to enter

the order awarding attorney’s fees and costs and imposing

sanctions against the petitioners.

B. Parties to the Removal Action

The petitioners next contend that the circuit court erred

in sanctioning them pursuant to Code § 8.01-271.1 because they

were not parties to the removal action. The petitioners assert

that the only parties to the removal action are the

Commonwealth, as the moving party, and the supervisors, as the

responding parties. Therefore, the petitioners conclude that

the circuit court erred in imposing sanctions against them. 3 We

agree with the petitioners on this issue.

Pursuant to Code § 24.2-233, a removal action commences

“[u]pon petition” that “must be signed by a number of

3
As we stated in footnote 2, supra, the General Assembly
amended Code § 24.2-238 while this case was on appeal. Under
current Code § 24.2-238(B), no person who signs a removal
petition shall have sanctions imposed against him pursuant to
Code § 8.01-271.1.
8
registered voters who reside within the jurisdiction of the

officer equal to ten percent of the total number of votes cast

at the last election for the office that the officer holds.”

After the petition is filed in the circuit court, “the court

shall issue a rule requiring the officer to show cause why he

should not be removed from office.” Code § 24.2-235 (emphasis

added). Thus, petitioners initiate a removal action by

submitting petitions that, once filed in the circuit court,

require the court to issue rules to show cause against the

officers. While petitioners in a removal action initiate the

action by filing a petition, the Code does not state that they

are parties to the removal action.

Although the Code does not explicitly state who is the

moving party in a removal action, Code § 24.2-237 provides

guidance. This Code section, titled “Who to represent

Commonwealth; trial by jury; appeal,” provides that the

“attorney for the Commonwealth shall represent the Commonwealth

in any trial under this article.” The section goes on to state

that “[t]he Commonwealth and the defendant shall each have the

right to apply to the Supreme Court for a writ of error.” Code

§ 24.2-237. This language presupposes that the Commonwealth is

the moving party in a removal action. This view is also

supported by our case law. In reviewing a removal action under

a predecessor statute, we stated it is “one which is primarily

9
public in its nature, which although not a criminal case is one

highly penal in its nature, and one in which the Commonwealth

is the party plaintiff.” Warren v. Commonwealth, 136 Va. 573,

594, 118 S.E. 125, 131 (1923).

Nothing in the Code or our jurisprudence supports the

supervisors’ argument that the petitioners are parties to the

removal action. The supervisors correctly note that the

caption of this case in the circuit court – and the caption of

the case in this Court – lists the petitioners as the moving

parties. The supervisors also cite the fact that the circuit

court purported to assign a special prosecutor to represent the

interests of the petitioners. But, neither putting a non-

party’s name in the caption of a case nor assigning counsel to

represent a non-party makes such person a party to a case.

A petitioner in a removal action is analogous to a victim

in a criminal proceeding. In both cases, while the

Commonwealth’s Attorney may be advancing the interests of the

petitioner or victim, the real party in interest is the

Commonwealth. Selected Risks Ins. Co. v. Dean, 233 Va. 260,

263-64, 355 S.E.2d 579, 580-81 (1987). Additionally, in both

cases, the Commonwealth’s Attorney does not owe the petitioner

or victim a professional duty. See Rule 1.2(a) of the Virginia

Rules of Professional Conduct; Restatement (3rd) of the Law

Governing Lawyers § 14 (2000) (creation of lawyer-client

10
relationship requires manifestation of an “intent that the

lawyer provide legal services for the person” and that “the

lawyer manifests to the person [the lawyer’s] consent to do

so”). The Commonwealth’s Attorney’s duty is to further the

best interests of the Commonwealth, not the interests of the

respective petitioners. Counsel for the supervisors

acknowledged that the special prosecutor represented the

Commonwealth and not the petitioners when, in arguing against

the entry of a nonsuit, he stated:

The posture in which this case is in front of you is
in the form of the Commonwealth versus public
officials. The petitioners have no role in the sense
that it is the Commonwealth that determines how to
proceed, if to proceed. The petitions are really
what initiates or brings to the forefront the demand,
if you will, on the Commonwealth if it should
proceed. So Mr. Randall [the special prosecutor] is
truly representing the Commonwealth and not the
citizens [the petitioners].

Having concluded that the petitioners were not parties to

the removal proceeding, we now address whether the petitioners

– as non-parties – were subject to sanctions under Code § 8.01-

271.1. For the reasons stated below, we hold that Code § 8.01-

271.1 applies only to parties and their attorneys, and does not

permit the imposition of sanctions against the petitioners

because they were not “parties” to the removal action.

Code § 8.01-271.1 provides, in part, that the

signature of an attorney or party constitutes a
certificate by him that (i) he has read the pleading,

11
 motion, or other paper, (ii) to the best of his
knowledge, information and belief, formed after
reasonable inquiry, it is well grounded in fact and
is warranted by existing law or a good faith argument
for the extension, modification, or reversal of
existing law, and (iii) it is not interposed for any
improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation.

(Emphasis added.)

This Code section also places a similar duty upon “an

attorney or party” making an oral motion. Id. The last

paragraph in Code § 8.01-271.1 gives circuit courts the

authority to impose sanctions for a violation of these duties:

If a pleading, motion, or other paper is signed
or made in violation of this rule, the court, upon
motion or upon its own initiative, shall impose upon
the person who signed the paper or made the motion, a
represented party, or both, an appropriate sanction,
which may include an order to pay to the other party
or parties the amount of the reasonable expenses
incurred because of the filing of the pleading,
motion, or other paper or making of the motion,
including a reasonable attorney’s fee.

(Emphasis added.)

The supervisors argue that the court had the authority to

sanction the petitioners because the statute states that the

court may sanction a “person who sign[s]” a paper in violation

of the statute. According to the supervisors, the term

“person” is broader than “attorney or party,” and as such, it

includes non-parties – such as the petitioners - who submit

12
papers with the court because they are “person[s] who signed”

papers. We disagree.

The first paragraph of Code § 8.01-271.1 provides that

“[e]very pleading, written motion, and other paper” must be

signed by either an attorney who represents a party or a party

who is not represented by an attorney. As stated above, the

second paragraph imposes a duty upon “an attorney or party” who

signs a paper that is filed with the court. The fourth

paragraph of Code § 8.01-271.1 provides the penalty for

violation of the duties imposed by the statute. That paragraph

provides that an appropriate sanction may be imposed upon “the

person who signed the paper or made the motion, a represented

party, or both.” Code § 8.01-271.1. This paragraph is

referring to a violation of the duties that are imposed upon

“attorney[s] or part[ies]” in the second and third paragraphs

of the statute. As such, the term “person” refers only to an

“attorney or party” that has a duty under Code § 8.01-271.1.

See Andrews v. Ring, 266 Va. 311, 319, 585 S.E.2d 780, 784

(2003) (“When general words and specific words are grouped

together, the general words are limited and qualified by the

specific words and will be construed to embrace only objects

similar in nature to those objects identified by the specific

words.”). Thus, under Code § 8.01-271.1, a court may only

sanction an “attorney or party” who violates the duties imposed

13
by the statute. Having concluded that the petitioners were not

subject to sanctions under Code § 8.01-271.1, we hold that the

circuit court erred in imposing sanctions against the

petitioners because they were not parties in the removal

action.

III. CONCLUSION

For the reasons stated above, we will reverse the judgment

of the circuit court imposing sanctions against the

petitioners. Because of our decision on the two issues

discussed, the remaining issues raised by the petitioners are

rendered moot.

Reversed and final judgment.

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