PRESENT: All the Justices
EILEEN M. McLANE,
FAIRFAX COUNTY ZONING ADMINISTRATOR
v. Record No. 081863 OPINION BY
JUSTICE BARBARA MILANO KEENAN
June 4, 2009
DEREK B. VEREEN, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
In this case involving fines imposed for a violation of a
zoning ordinance, we consider whether the circuit court erred
in ordering the payment of fines in an amount less than the
rate specified in a consent decree endorsed by the affected
property owners and Fairfax County.
In April 2006, Eileen M. McLane, the zoning administrator
for Fairfax County (the County), issued a notice to Derek B.
Vereen and Angelique Vereen stating that the Vereens had
violated certain provisions of the Fairfax County Zoning
Ordinance (the zoning ordinance) by keeping on their property
inoperable vehicles, tires, trailers, boats, a mobile home, and
other debris. Four months later, after the Vereens had failed
to take action to remedy the violation, the County filed a
complaint in the circuit court asking the court to declare that
the property was a “junk yard” prohibited by the zoning
ordinance and to issue an injunction requiring the Vereens to
remove the described items from their property.
After agreeing to settle their dispute, the County and the
Vereens stipulated to the terms of their settlement in a
consent decree, which the circuit court entered on June 4,
2007. The consent decree contained the parties’ agreement that
the Vereens’ use of the property as a “junk yard” violated the
zoning ordinance, and that the Vereens would bring the property
into compliance with the zoning ordinance within 60 days.
In the consent decree, the parties also agreed that if the
Vereens failed to comply with the decree’s terms, the Vereens
would pay to the County $100 per day “for every day the [c]ourt
finds a violation.” The decree stated that “[p]ayment of this
amount shall be in addition to any additional sanctions the
[c]ourt may impose upon a finding of contempt for any
violation” of the decree. In addition, the decree prohibited
the Vereens from using the property as a “junk yard” in the
future.
Finally, the decree stated that the parties and the court
agreed that the terms of the decree were reasonable and would
not be modified “except by the written agreement of the parties
. . . with the approval of [the] [c]ourt.” Above the circuit
court judge’s signature, the decree read, “THIS CAUSE IS
ENDED.”
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At the Vereens’ request, the County later extended the 60-
day deadline for an additional 30 days, allowing the Vereens
until September 2, 2007 to bring the property into compliance.
The Vereens did not meet this extended deadline.
About four months later, the County filed a motion for a
rule to show cause in the circuit court asserting that the
Vereens had failed to comply with the terms of the consent
decree. The County asked, in part, that the circuit court
impose fines on the Vereens in the amount of $100 per day “for
every day they [were] found to be in violation of the [c]onsent
[d]ecree” until they complied with the decree’s terms.
In accordance with the County’s request, the circuit court
ordered the Vereens to appear in court on February 15, 2008 to
show cause, if any, why they should not be held in contempt for
violating the terms of the consent decree. At a hearing held
on that date, the circuit court granted the Vereens’ request
for a continuance until March 14, 2008.
At the March 14, 2008 hearing, the County presented
evidence that the Vereens still had not complied with the terms
of the consent decree. The circuit court continued the case a
second time until April 4, 2008.
After completing the removal of the prohibited debris from
their property on March 27, 2008, the Vereens filed a motion in
the circuit court opposing the County’s request for imposition
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of the fines. At a hearing in June 2008, the County requested
that the circuit court order the Vereens to pay fines in the
amount of $20,600 to cover the period of 206 days, from
September 2, 2007 to March 27, 2008, that the Vereens were in
violation of the consent decree.
After the hearing, the circuit court issued a letter
opinion imposing fines in the total amount of $3,500. The
circuit court stated that “[b]y seeking these sanctions now[,]
after the Vereens are in compliance[,] the Zoning Administrator
is no longer using [the fines] as an incentive to induce
compliance, but rather as a penalty for the Vereens’ delayed
compliance.” On June 18, 2008, the circuit court entered final
judgment incorporating these holdings.
The County filed a motion for reconsideration, again
asking the court to fix the fines in accordance with the terms
of the consent decree. The circuit court denied the County’s
motion in an order dated July 9, 2008, which stated that the
consent decree was not “self[-]executing,” and that the fines
of $100 per day were unreasonable “[b]ased on the specific
facts present in this case.” The order further stated that
because the Vereens had brought their property into compliance
with the zoning ordinance, the fines requested by the County
would constitute a penalty.
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On appeal, the County argues that the circuit court did
not have authority to amend the terms of the consent decree,
because that decree became a final judgment 21 days after its
entry and its terms were not later subject to change. The
County further observes that the parties and the circuit court
agreed that the decree’s terms were reasonable, and that the
decree could be modified only with the consent of all the
parties. Therefore, the County asserts that the circuit
court’s judgment was plainly wrong because the circuit court
lacked any authority to deviate from enforcing the stated terms
of the decree.
In response, the Vereens initially raise two procedural
challenges to the County’s appeal. First, the Vereens argue
that the County’s appeal should be dismissed because the County
failed to note an appeal from the circuit court’s order of July
9, 2008 and instead noted its appeal after entry of the June
18, 2008 order. The July 9, 2008 order, which denied the
County’s motion for reconsideration, stated for the first time
that the consent decree was not self-executing, and restated
the court’s earlier holding that the fines provided in the
consent decree were unreasonable and imposed a penalty.
According to the Vereens, the circuit court’s holding that the
consent decree was not self-executing was an alternative
holding that the County failed to appeal.
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Second, the Vereens contend that the County’s appeal is
barred because the County failed to object to the circuit
court’s determination that the consent decree was not self-
executing. We disagree with these procedural arguments.
We have stated that a final order or decree is one that
disposes of the entire matter before the court, giving all the
relief contemplated and leaving nothing to be done by the court
except the ministerial execution of the court’s order or
decree. Comcast of Chesterfield County, Inc. v. Board of
Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009);
Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41,
60, 655 S.E.2d 10, 21 (2008); James v. James, 263 Va. 474, 481,
562 S.E.2d 133, 137 (2002); Daniels v. Truck & Equipment Corp.,
205 Va. 579, 585, 139 S.E.2d 31, 35 (1964). Here, the order
disposing of the whole subject and giving all the relief
contemplated was the order that the circuit court entered on
June 18, 2008. In that order, the circuit court determined
that the fines provided in the consent decree were unreasonable
and reduced the total amount payable by the Vereens to $3,500.
The circuit court’s statement in the July 9, 2008 order,
that the consent decree was not self-executing, merely provided
an additional explanation of the court’s earlier action and was
not an alternative holding to which the County was required to
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note an objection and an appeal. Therefore, we conclude that
the County’s appeal is not procedurally barred.
In addressing the merits of the County’s appeal, the
Vereens contend that the circuit court correctly determined
that the daily fines provided in the consent decree were
unreasonable and constituted unenforceable penalties. The
Vereens assert that the circuit court appropriately reduced the
amount of the fines because, once the Vereens removed the
debris from their property, the County could not reasonably
maintain that the fines were a necessary incentive to obtain
compliance with the zoning ordinance. We disagree with the
Vereens’ arguments.
A consent decree contains some elements of a judgment
rendered after trial but in other respects resembles a
contractual agreement. See Local No. 93, Int’l Ass’n of
Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986);
United States v. ITT Continental Baking Co., 420 U.S. 223, 235-
38 (1975); Fuller v. Troy, 169 Va. 490, 494, 194 S.E. 668, 669
(1938); Culpeper Nat’l Bank v. Morris, 168 Va. 379, 385, 191
S.E. 764, 767 (1937). A consent decree may only be entered by
a court having jurisdiction of the parties and of the subject
matter of the litigation. Liberty Mutual Ins. Co. v. Eades,
248 Va. 285, 288, 448 S.E.2d 631, 633 (1994); see Culpeper
Nat’l Bank, 168 Va. at 385, 191 S.E.2d at 767. The parties
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entering into a consent decree achieve a continuing basis for
the court’s jurisdiction to enforce the terms of their
agreement. Smyth v. Rivero, 282 F.3d 268, 280-81 (4th Cir.
2002); see Frew v. Hawkins, 540 U.S. 431, 438 (2004); Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992);
Culpeper Nat’l Bank, 168 Va. at 386, 191 S.E. at 767.
The two essential components of a consent decree are: 1)
the substantive terms of the parties’ agreement concerning the
matter in controversy; and 2) the judge’s endorsement of the
order or decree rendering its terms enforceable by the court.
See Liberty Mutual Ins. Co., 248 Va. at 288, 448 S.E.2d at 633;
Fuller, 169 Va. at 494, 194 S.E.2d at 669; Culpeper Nat’l Bank,
168 Va. at 385-86, 191 S.E.2d at 767. A judge entering a
consent decree ordinarily does not engage in any adjudication
of the facts or the law that may be applicable to the decree’s
terms. Liberty Mutual Ins. Co., 248 Va. at 288, 448 S.E.2d at
633; Culpeper Nat’l Bank, 168 Va. at 385, 191 S.E.2d at 767.
When a consent decree is final in nature, it is
enforceable in the same manner as any other court decree or
order and may be enforced by the imposition of sanctions or by
a contempt citation. See Frew, 540 U.S. at 438; Rufo, 502 U.S.
at 378; Liberty Mutual Ins. Co., 248 Va. at 288, 448 S.E.2d at
633; Culpeper Nat’l Bank, 168 Va. at 386, 191 S.E. at 767; see
also Local No. 93, 478 U.S. at 530. Because a consent decree
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that is final in nature constitutes a judgment of a court, such
a decree is conclusive and is not subject to collateral attack
except on jurisdictional grounds or for fraud or collusion.
Liberty Mut. Ins. Co., 248 Va. at 288, 448 S.E.2d at 633;
Culpeper Nat’l Bank, 168 Va. at 385-87, 191 S.E. at 767; see
Fuller, 169 Va. at 494, 194 S.E. at 669.
In view of these principles, the central issue before us
is whether the consent decree containing the agreement between
the County and the Vereens was a final judgment. As we already
have observed, a final judgment is one that disposes of the
entire matter before the court, giving all the relief
contemplated and leaving nothing to be done by the court except
the ministerial execution of the court’s order or decree.
Comcast of Chesterfield County, Inc., 277 Va. at 301, 672
S.E.2d at 873; Upper Occoquan Sewage Auth., 275 Va. at 60, 655
S.E.2d at 21; James, 263 Va. at 481, 562 S.E.2d at 137;
Daniels, 205 Va. at 585, 139 S.E.2d at 35. A circuit court may
only alter the terms of a final judgment for 21 days after its
entry. Rule 1:1.
The fact that a consent decree may later be the subject of
an enforcement action, requiring a court to receive evidence to
determine whether the decree’s terms have been violated, does
not resolve the issue whether the decree was final when
rendered. The content of a consent decree, not the possibility
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of a future enforcement action, determines whether the decree
qualifies as a final judgment.
In the present case, we conclude that the consent decree
was a final judgment. The consent decree contained the
parties’ agreement that the Vereens would comply with the
zoning ordinance within 60 days and refrain from any future use
of the property as a “junk yard,” or pay to the County a fine
of $100 per day for every day that they were found to have been
in violation of these terms. The decree also stated the
parties’ agreement that the above terms were reasonable and
could not be modified without the written consent of the
parties and the approval of the court. Additionally, the
decree provided that a copy thereof would be recorded among the
County land records “to give notice of the prohibitions and
restrictions contained herein to any successors-in-interest of
the Vereens.”
These terms of the consent decree provided a final
resolution of the parties’ dispute and set the daily fine to be
imposed for any failure to comply with the decree’s terms.
Thus, we conclude that the consent decree, considered as a
whole, disposed of the entire matter before the court, gave all
contemplated relief, and left nothing to be done except the
ministerial execution of the court’s decree. See Comcast of
Chesterfield County, Inc., 277 Va. at 301, 672 S.E.2d at 873;
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Upper Occoquan Sewage Auth., 275 Va. at 60, 655 S.E.2d at 21;
Daniels, 205 Va. at 585, 139 S.E.2d at 35. Accordingly, the
consent decree was a final decree whose terms were not subject
to alteration by the court after 21 days. See Rule 1:1.
We observe that had the parties wanted the consent decree
to be subject to modification by the court on motion of one
party, they could have provided so in the decree, thereby
agreeing to the entry of a decree not final in nature.
Moreover, if the circuit court had considered it essential to
retain authority to alter the decree’s terms, the circuit court
could have declined to enter a consent decree unless the
parties agreed to the addition of such a provision.
The Vereens argue, nevertheless, that the circuit court
was authorized to change the terms of the present consent
decree, because the circuit court held that in light of the
Vereens’ compliance, payment of the full amount of fines would
result in the imposition of an unlawful penalty. The Vereens
argue that the circuit court’s action to prevent imposition of
a penalty is supported by our holding in O’Brian v. Langley
School, 256 Va. 547, 507 S.E.2d 363 (1998). We disagree with
this argument.
The plaintiffs in O’Brian had entered into a contract
enrolling their daughter as a student at a private school. Id.
at 549, 507 S.E.2d at 364. The contract provided that in the
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event that they withdrew the enrollment after June 1 of the
calendar year, they would not be entitled to any refund of the
amount due for the upcoming school year. Id. at 549-50, 507
S.E.2d at 364. We held that the fact that the plaintiffs had
entered into a contract containing this liquidated damages
clause did not prevent the plaintiffs from later litigating
whether the clause imposed an invalid penalty. Id. at 551, 507
S.E.2d at 365.
This holding in O’Brian is inapposite to the issue before
us. We are not concerned here with a liquidated damages
provision of a contract, but with the terms of a final judgment
entered by a court having subject matter jurisdiction and
jurisdiction of the parties. That final judgment is conclusive
of the matters adjudicated and is not subject to collateral
attack on the grounds that the judgment is unreasonable. See
Liberty Mut. Ins. Co., 248 Va. at 288, 448 S.E.2d at 633;
Culpeper Nat’l Bank, 168 Va. at 385-87, 191 S.E.2d at 767-68.
Accordingly, we hold that the circuit court erred in reducing
the amount of fines owed by the Vereens to the County.
For these reasons, we will reverse the circuit court’s
judgment and will enter final judgment in favor of the County
in the amount of $20,600.
Reversed and final judgment.
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