PRESENT: All the Justices
COMCAST OF CHESTERFIELD COUNTY, INC.
OPINION BY
v. Record No. 080946 JUSTICE CYNTHIA D. KINSER
February 27, 2009
BOARD OF SUPERVISORS OF CHESTERFIELD COUNTY
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
This appeal involves a dispute between the Board of
Supervisors of Chesterfield County (County) and Comcast of
Chesterfield County, Inc. (Comcast) concerning the County's
classification of certain personal property used by Comcast in
its cable television business as tangible personal property
pursuant to Code § 58.1-1101(A)(2a). The issue before the
circuit court was whether the contested property falls under the
"machines and tools" exception to the statutory classification
of personal property used in cable television businesses as
intangible, and is thereby taxable by the County.
The County, however, asks this Court to dismiss the appeal
as improvidently granted because the circuit court's order from
which Comcast noted its appeal is not a final order and, thus,
is not an appealable order. Because we agree with the County,
we conclude the Court does not have jurisdiction to decide the
merits of the appeal. Thus, we will dismiss the appeal without
prejudice as improvidently granted.
1
I. MATERIAL FACTS AND PROCEEDINGS
The County's Office of the Commissioner of the Revenue
(Commissioner) conducted an audit to determine which items of
Comcast's personal property used in its cable television
business is taxable by the County. Upon completion of the
audit, the Commissioner sent Comcast supplemental tax
assessments for tax years 2003 through 2006. In a letter dated
May 2, 2006 accompanying the supplemental tax assessments, a
Deputy Commissioner explained, "[t]he property that is not
taxable and has been identified as intangible personal property
and exempt from local taxation is tuners, converters,
amplifiers, power supplies, and radios." 1
Comcast paid the supplemental personal property taxes but
requested the Commissioner to classify electronics and modems as
intangible personal property. In response, the Commissioner
decided "electronics, modems, and converters are machines or
equipment that is taxable as tangible personal property [and]
have not been statutorily defined as intangible personal
property." As a result of the Commissioner's determination, the
1
The Commissioner apparently conducted what is referred to
as a "statutory assessment" pursuant to Code §§ 58.1-3519 and -
3903, using the best available information, because Comcast had
not responded to previous requests to produce an itemized list
of personal property. In the May 2, 2006 letter, the Deputy
Commissioner stated that the County had "requested several times
detailed asset information to include description, date of
acquisition, and purchase cost for each item of property."
2
County issued a second supplemental assessment for personal
property taxes on Comcast's converters. Comcast also paid these
additional taxes.
Pursuant to Code § 58.1-3984, Comcast filed a "Complaint
For Correction Of Erroneous Assessments" for tax years 2003
through 2006, alleging: (1) the County had no legal authority to
tax Comcast's "plant electronics" and "customer premises
equipment" 2 because they are classified as intangible personal
property under Code § 58.1-1101(A)(2a), thereby rendering the
assessments "illegal and invalid" (Counts 1 through 8); and (2)
the taxes assessed on certain property had already been paid
(Counts 9 and 10). 3 In its complaint, Comcast did not challenge
the County's methodology in determining the value of the
contested personal property or the actual valuation placed on
the property.
Instead, Comcast challenged the legal authority of the
County to tax the contested business personal property and
requested a refund of the amounts paid by Comcast for the
County's assessment of its "plant electronics" and "customer
2
Comcast separates the contested property into two
categories, "plant electronics" and "customer premises
equipment." "Plant electronics" include amplifiers, power
supplies, receiver/transmitter pairs, and taps. "Customer
premises equipment" includes converters, remote controls, and
cable modems.
3
Comcast subsequently nonsuited counts 9 and 10.
3
premises equipment." The County in large part denied Comcast's
allegations.
As the case proceeded, the County served interrogatories
and requests for production of documents asking Comcast, among
other things, to "separately identify [for the tax years 2003
through 2006] each and every individual component or item of
tangible personal or business property owned by Comcast with
situs in Chesterfield County" that falls within Comcast's
categories of property referred to in its complaint. Because
the County believed Comcast did not adequately respond to its
discovery requests, the County filed a motion to compel under
Rule 4:12, requesting the circuit court to order Comcast "to
produce the records and information it is required to produce
pursuant to . . . Code §§ 58.1-3518 and –3983.1(K) and the
County's discovery requests."
At a hearing on its motion to compel, the County argued
that the motion should be granted because in every erroneous tax
assessment case filed under Code § 58.1-3984, the provisions of
Code § 58.1-3987 require the circuit court to determine the
correct assessed value of the property. Continuing, the County
argued that the information sought in its discovery requests is
necessary for the circuit court to make that determination and
the motion therefore should be granted.
4
Comcast took the position that, since it did not challenge
the County's valuation of the contested property, the circuit
court was limited to the issue presented in its complaint
concerning the authority of the County to tax the contested
property. Comcast conceded the valuation placed upon the
contested property by the County was correct; therefore, Comcast
argued, the issue of valuation, and thus the information
requested, was irrelevant.
At the conclusion of this hearing, the circuit court took
the motion to compel under advisement and "bifurcated" the
proceeding into the classification issue and the valuation
issue, which included the motion to compel and the relevancy of
the information requested in the County's discovery requests.
The circuit court recognized that if it decided the contested
property was not taxable by the County, then the valuation issue
would be irrelevant and any information demanded in the motion
to compel would likewise be irrelevant.
At a subsequent hearing before the circuit court on the
classification issue, the question whether Comcast's "plant
electronics" and "customer premises equipment" are taxable by
the County under Code § 58.1-1101(A)(2a) turned on the
definition of the term "machines" under the "machines and tools"
exception contained in the statute. The County urged the
circuit court to define "machines" as "[m]echanically,
5
electrically, or electronically-operated device[s] for
performing a task," or "any system or device, such as an
electronic computer, that performs or assists in the performance
of a human task." The County argued that the definition of
"machines" should be ascertained with reference to the
provisions of Code § 58.1-1101(A)(2a) since the statute refers
to personal property used in the cable television business.
In response, Comcast argued that Code § 58.1-1101(A)(2a)
must be narrowly construed in favor of the taxpayer and that the
broad definition urged by the County "would leave virtually none
of Comcast's property outside of the exception." Accordingly,
Comcast argued that the definition of "machines" should include
only "device[s] consisting of fixed and moving parts that
modifies mechanical energy and transmits it in a more useable
form."
In a letter opinion, the circuit court concluded the
business personal property at issue is subject to taxation by
the County. In an order dated February 15, 2008, the circuit
court ruled that
the items of property at issue are "machines" under
the plain meaning of that word and are, therefore,
items of property properly classified as business
tangible personal property under [Code § 58.1-
1101(A)(2a)].
6
At a hearing before the circuit court to discuss the
language of the above order, the parties returned to the motion
to compel that the court had previously taken under advisement.
The County asserted that based on the circuit court's decision
regarding the classification issue, the court should grant the
motion to compel so that the question of valuation could be
decided. Comcast argued, as it had previously, that the
information sought by the County in its discovery requests was
irrelevant and the February 15, 2008 order resolved all of the
issues raised in Comcast's complaint.
The circuit court again took the motion to compel under
advisement and requested the parties to submit briefs on the
question whether it was still necessary for the court to
determine the assessed value of the contested property. On
February 25, 2008, Comcast filed a notice of appeal from the
circuit court's order of February 15, 2008. In the notice,
Comcast stated the circuit court's order, "which construes [Code
§ 58.1-1101(A)(2a)] as imposing taxes on certain Comcast
property, may be immediately appealed pursuant to . . . Code
§§ 8.01-670(1)(f) and (g)."
II. ANALYSIS
The County challenges the Court's jurisdiction to hear this
appeal and moves to dismiss the appeal as improvidently granted.
"[T]he question of jurisdiction is one for the determination of
7
the appellate court only. Before the merits of this case can be
considered, this [C]ourt must determine whether it has
jurisdiction." Madison v. Kroger Grocery & Bakery Co., 160 Va.
303, 306, 168 S.E. 353, 354 (1933); see also Todd v. Gallego
Mills Mfg. Co., 84 Va. 586, 598, 5 S.E. 676, 681 (1888).
"While by statute an appeal may be taken from certain
interlocutory orders as well as from final decrees, a writ of
error does not lie except where there has been a final order or
judgment in the cause." Hatke v. Globe Indem. Co., 167 Va. 184,
188, 188 S.E. 164, 166 (1936) (internal quotation marks
omitted). See also Johnston v. Johnston, 181 Va. 357, 359, 25
S.E.2d 274, 275 (1943) ("Appellate jurisdiction presupposes
either a final decree or an adjudication of the principles of a
cause. The latter may be interlocutory. . . . Until a final
decree, or one adjudicating the principles of the cause, is
properly brought before this [C]ourt, it is without power to
exert its appellate jurisdiction."); Elder v. Harris, 75 Va. 68,
71 (1880) ("Only in a case in chancery is a party authorized to
appeal from a decree or order which is not final, and then only
from such decree or order as is described in the foregoing
[jurisdictional statute]."). 4 Thus, for the Court to have
4
The jurisdictional statute in Elder authorized
interlocutory appeals under substantially the same circumstances
as those set forth in current Code § 8.01-670(B).
8
jurisdiction of this appeal, the order from which Comcast
appealed must be either a final order or an interlocutory order
from which an appeal is statutorily authorized. 5
A. Final Order
The County asserts the February 15, 2008 order is not a
final order. Reiterating the position it took in the circuit
court, the County argues that the provisions of Code § 58.1-3987
require a trial court, when deciding an erroneous tax assessment
action, to determine the correct assessed value of a taxpayer's
property. Thus, the County argues "the circuit court has yet to
perform its duty under § 58.1-3987 to determine what property
Comcast actually owned during each of the 2003-2006 tax years,
decide what the fair market value of that property is and assess
the proper tax."
Comcast, on the other hand, reasserts its position that the
circuit court had no power to decide the valuation issue because
Comcast only challenged the validity of the County's
classification of the contested property in its complaint.
Continuing, Comcast argues that because the February 15, 2008
5
The "severable interest rule" allowing the appeal of an
interlocutory order in certain circumstances is not applicable
to the case at bar. See Thompson v. Skate America, Inc., 261
Va. 121, 127, 540 S.E.2d 123, 126 (2001) ("An interlocutory
order which is final as to some but not all parties may in some
circumstances be appealed before the case is concluded as to all
defendants under the severable interests rule.").
9
order disposed of that issue, the order is final and thus
appealable.
We have described a final order as one
which disposes of the whole subject[,] gives all the
relief that is contemplated, and leaves nothing to be
done by the court, is only to be regarded as final.
On the other hand, every decree which leaves anything
in the cause to be done by the court is interlocutory
as between the parties remaining in the court.
Dearing v. Walter, 175 Va. 555, 561, 9 S.E.2d 336, 338 (1940).
See also James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137
(2002) (a final order is one that " 'disposes of the whole
subject, gives all the relief contemplated . . . and leaves
nothing to be done in the cause save to superintend
ministerially the execution of the order' ") (quoting Daniels v.
Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35
(1964)); Ragan v. Woodcroft Village Apartments, 255 Va. 322,
327, 497 S.E.2d 740, 743 (1998) ("A final order or judgment is
one that disposes of the whole subject of the case and gives all
relief contemplated.").
Applying these principles, we hold that the February 15,
2008 order of the circuit court classifying the contested
property as "machines" was not a final order. The record
clearly reveals matters that remained for the circuit court to
10
resolve at the time Comcast filed its notice of appeal. 6 See
Dearing, 175 Va. at 561, 9 S.E.2d at 338. The circuit court
bifurcated the proceedings in order to decide the classification
issue first, and if necessary, to decide the valuation issue.
When Comcast filed its notice of appeal, the circuit court was
awaiting briefs from the parties in order to assist the court in
deciding whether it should grant the County's motion to compel
and conduct a valuation of Comcast's property. Clearly, there
was more to be done in this case than to superintend
ministerially the execution of the February 15, 2008 order. See
James, 263 Va. at 481, 562 S.E.2d at 137. Therefore, the order
was not a final order. 7
B. Appealable Interlocutory Order
Since the circuit court's February 15, 2008 order was not a
final order, the remaining question is whether it was
nevertheless appealable as an interlocutory order. In that
regard, Comcast, quoting Code §§ 8.01-670(A)(1)(f) and (g),
argues that this Court has jurisdiction of its appeal because
6
Additionally, in its notice of appeal, Comcast tacitly
conceded that the February 15, 2008 order was not a final order
by stating that the order "may be immediately appealed."
7
We need not decide the County's assertion that Code
§ 58.1-3987 requires a circuit court in every tax assessment
case to determine the correct assessed value of the taxpayer's
property. It is sufficient that the circuit court in this case
had not yet ruled on whether it had to do so when Comcast filed
its notice of appeal.
11
the February 15, 2008 order is a " 'judgment in a controversy
concerning' . . . '[t]he right of . . . a county . . . to levy
. . . taxes' [and regarding] '[t]he construction of [a] statute
. . . imposing taxes,' " and "Comcast is a 'taxpayer aggrieved
by the action' of the circuit court." Comcast asserts that Code
§ 8.01-670(A)(3), in contrast to § 8.01-670(A)(1)(f) and (g),
explicitly requires a "final judgment" before appealing "any
other civil case." Thus, according to Comcast, the "General
Assembly did not make finality a prerequisite for appeals under"
Code §§ 8.01-670(A)(1)(f) and (g).
The County responds that there is no statutory
authorization for an interlocutory appeal in an erroneous tax
assessment case. The County asserts "the purpose behind § 8.01-
670(A)(1) (formerly § 8-462) was to provide a listing of cases
that could be appealed to this Court even if the amount of
controversy was less than the jurisdictional minimum in place at
the time, not to grant authority for interlocutory appeals."
The County insists that "interlocutory appeals are only
available in chancery cases and only in those chancery cases
prescribed by statute." The County contends that, in an action
at law, an order must be a final order to be appealable.
The Court agrees with the County that the provisions of
Code § 8.01-670(A)(1) set forth the types of controversies that
are exempt from the amount in controversy otherwise required for
12
this Court to have appellate jurisdiction over a particular
civil case. The statute does not authorize the appeal of
interlocutory orders in those particular controversies.
We begin our analysis by looking at the two relevant
statutes, Code §§ 8.01-672 and -670. The former provides:
No petition shall be presented for an appeal from any
judgment of a circuit court except in cases in which
the controversy is for a matter of $500 or more in
value or amount, and except in cases in which it is
otherwise expressly provided; nor to a judgment of any
circuit court when the controversy is for a matter
less in value or amount than $500, exclusive of costs,
unless there be drawn in question a freehold or
franchise or the title or bounds of land, or some
other matter not merely pecuniary.
(Emphasis added).
The provisions of Code § 8.01-670 state, in relevant part:
A. Except as provided by § 17.1-405, any person may
present a petition for an appeal to the Supreme
Court if he believes himself aggrieved:
1. By any judgment in a controversy concerning:
a. The title to or boundaries of land,
b. The condemnation of property,
c. The probate of a will,
d. The appointment or qualification of a
personal representative, guardian,
conservator, committee, or curator,
e. A mill, roadway, ferry, wharf, or landing,
f. The right of the Commonwealth, or a county,
or municipal corporation to levy tolls or
taxes, or
g. The construction of any statute, ordinance,
or county proceeding imposing taxes; or
13
2. By the order of a court refusing a writ of quo
warranto or by the final judgment on any such
writ; or
3. By a final judgment in any other civil case.
B. Except as provided by § 17.1-405, any party may
present a petition for an appeal to the Supreme
Court in any case on an equitable claim wherein
there is an interlocutory decree or order:
1. Granting, dissolving or denying an injunction;
or
2. Requiring money to be paid or the possession or
title of property to be changed; or
3. Adjudicating the principles of a cause.
While not explicit in the current statutory scheme, this
Court's jurisprudence makes it clear that the amount in
controversy requirement set forth in Code § 8.01-672 applies
"except in cases in which it is otherwise expressly provided,"
and that the types of controversies listed in Code §§ 8.01-
670(A)(1)(a)–(g) are those cases "otherwise expressly provided"
as exempt from the amount in controversy requirement. See
Hampton Roads Sanitation Dist. Comm'n v. Smith, 193 Va. 371,
374, 68 S.E.2d 497, 499 (1952) (recognizing that former Code
§ 8-462, now Code § 8.01-670, enumerated the cases excepted from
the amount in controversy requirement set forth in former Code
§ 8-464, now Code § 8.01-672, including those involving "[t]he
right of the State, or a county, or municipal corporation to
levy tolls or taxes" (emphasis omitted)); Schermerhorn v.
Commonwealth, 107 Va. 707, 709-10, 60 S.E. 65, 66 (1908) (noting
14
the constitutional provision limiting this Court's jurisdiction
allows an exception to the amount in controversy requirement for
"controversies concerning . . . the right of the state, county
or municipal corporation to levy tolls or taxes, [or] involving
the construction of any statute, ordinance or county proceedings
imposing taxes"); see also Pannill v. Coles, 81 Va. 380, 383
(1886) (" 'It (the Supreme Court of Appeals) shall not have
jurisdiction in civil cases where the amount in controversy,
exclusive of costs, is less in value or amount than five hundred
dollars, except in controversies concerning the title or
boundaries of land, the probate of a will,' &c., setting forth
other exceptions." (quoting former Va. Const. art. VI, § 2
(1870)); Neal v. Commonwealth, 62 Va. (21 Gratt.) 511, 515
(1871) ("[T]his court shall not have appellate 'jurisdiction, in
civil cases, where the matter in controversy, exclusive of
costs, is less in value or amount than five hundred dollars,
except in controversies concerning the title or boundaries of
land, the probate of a will, the appointment or qualification of
a personal representative, guardian, committee, or curator; or
concerning a mill, road-way, ferry, or landing, or the right of
a corporation or of a county to levy tolls, or taxes, and except
in cases of habeas corpus, mandamus, and prohibition, or the
constitutionality of a law.' " (quoting former Va. Const. art.
VI, § 2 (1870)).
15
In a case involving the operation of a ferry service, this
Court found the order at issue was final and appealable under
former Code § 8-462(1)(a)(v), which is substantially similar to
current Code § 8.01-670(A)(1)(e). New York, Philadelphia and
Norfolk R.R. Ferry Co. v. County of Northampton, 196 Va. 412,
420-21, 83 S.E.2d 773, 778 (1954). There, the County of
Northampton moved to dismiss the appeal, claiming that "none of
the orders entered by the trial court was final, and for that
reason was not appealable." Id. at 420, 83 S.E.2d at 778. The
Court held that the
order denying the Railroad Ferry Company's prayer was
final for it disposed of the whole subject-matter then
before the court. Hence, the order was reviewable
under Code, section 8-462(1), which reads: "Any person
who thinks himself aggrieved: (a) By any judgment,
decree, or order in a controversy concerning, . . .
(v) A mill, roadway, ferry, wharf, or landing . . .,"
may present a petition for a writ of error.
Id. at 420-21, 83 S.E.2d at 778 (citation omitted). Certainly,
the Court would not have needed to determine if the order
appealed from was final if a final order was not required for an
appeal under that Code section.
In Smiley v. The Provident Life & Trust Co., 106 Va. 787,
790, 56 S.E. 728, 729 (1907), the petitioners argued that, prior
to being amended, former Code § 3454 did not require a final
order " 'in a controversy concerning the probate of a will or
the appointment or qualification of a personal representative,
16
guardian, curator or committee, or concerning a mill, roadway,
ferry, wharf or landing,' before there could be an appeal or
writ of error." Id. (quoting former Code § 3454, now Code
§ 8.01-670(A)(1)). The petitioners further argued that an
amendment placed " 'controversies concerning the title to or
boundaries of land' " in the same class of controversies, and
therefore, no final order was required for a writ of error to
lie in an action of ejectment. Id. (quoting former Code § 3454,
now Code § 8.01-670(A)(1)).
The Court rejected the argument that a final order was not
required for a writ of error to lie in the controversies listed
in former Code § 3454. Id. at 790-91, 56 S.E. at 729-30. The
Court stated:
If it were true that prior to the amendment of
section 3454 an appeal or writ of error did lie from
or to an order or judgment in that class of cases,
although there had been no final judgment in the
cause, the contention of the petitioners for the
rehearing would be clearly right. But prior to the
amendment an appeal or writ of error did not lie in
any case at law until there had been a final order or
judgment in the cause. There was a provision in that
section that in any case in chancery wherein there is
a decree or order dissolving an injunction or
requiring money to be paid, or the possession or title
of property to be changed or adjudicating the
principles of a cause there might be an appeal
although no final order or decree had been entered
therein. But there was nothing in the section, as
construed by this court, which authorized a writ of
error in any case at law until there had been a final
judgment.
17
Id. at 790-91, 56 S.E. at 729 (internal quotations omitted).
See also Dove v. May, 201 Va. 761, 763-64, 113 S.E.2d 840, 841-
42 (1960) (holding the order appealed from in a condemnation
proceeding was not a final, appealable order).
We note that Code § 8.01-670(B) explicitly authorizes an
appeal in cases of equity for an interlocutory decree
"[g]ranting, dissolving or denying an injunction," "[r]equiring
money to be paid or the possession or title of property to be
changed," or "[a]djudicating the principles of a cause." Code
§ 8.01-670(B). Additionally, the provisions of Code § 8.01-
670.1 permit the permissive appeal of interlocutory orders that
would not otherwise be appealable when the appellate court
determines the required certification by the circuit court has
"sufficient merit." Thus, we discern that, when the General
Assembly authorizes the appeal of interlocutory orders, it does
so in express and unambiguous terms. In the absence of an
express authorization in subsection (A)(1) of Code § 8.01-670
allowing appeals of interlocutory orders in the types of
controversies listed there, we will not infer such
authorization.
We are not persuaded otherwise because the General Assembly
used the phrase "final judgment in any other civil case" in Code
§ 8.01-670(A)(3), but utilized in Code § 8.01-670(A)(1) the
phrase "any judgment in a controversy." The term "judgment" is
18
defined as "[a] court's final determination of the rights and
obligations of the parties in a case. The term judgment
includes an equitable decree and any order from which an appeal
lies." Black's Law Dictionary 858 (8th ed. 2004). Thus, the
General Assembly's use of the term "judgment" in Code § 8.01-
670(A)(1) denotes a requirement of finality.
We therefore hold that Code § 8.01-670(A)(1) does not
authorize appeals of interlocutory orders in those types of
controversies enumerated in that subsection. To hold otherwise
"would allow the appeal of countless interlocutory matters,
including orders granting continuances, orders setting trial
dates, orders determining venue, and orders providing for bills
of particulars or the production of documents. Manifestly, the
legislature did not intend such a result." Ragan, 255 Va. at
328, 497 S.E.2d at 743. 8
III. CONCLUSION
The order of the circuit court dated February 15, 2008,
classifying the contested property as "machines," is not a final
8
This holding is consistent with the Court's treatment of
Code § 16.1-106, the statute that provides for a circuit court's
de novo review of a judgment rendered by a court not of record.
See Ragan, 255 Va. at 327, 497 S.E.2d at 743 ("when Code § 16.1-
106 refers to an appeal from 'any order entered or judgment
rendered in a court not of record in a civil case in which the
matter in controversy is of greater value than fifty dollars,'
this language provides for an appeal only from final orders or
judgments").
19
order and is not otherwise appealable as an interlocutory order. 9
Thus, the Court is without jurisdiction of this appeal. We will
dismiss the appeal without prejudice as improvidently granted.
Dismissed.
9
Comcast asserts that, since Code § 58.1-3992 provides for
an appeal to this Court by "[a]ny locality or taxpayer aggrieved
by the action of a court of record" regarding the assessment of
local taxes, while, in contrast, the parallel provision for
appeals regarding taxes assessed by the Commonwealth, § 58.1-
1828, allows an appeal from "any final order of the court,"
(emphasis added), the General Assembly authorized an appeal from
the interlocutory order in this case. This distinction does not
alter our conclusion. Given this Court's longstanding
jurisprudence requiring a final order in a case at law, we do
not believe the General Assembly, by enacting these statutes,
intended to provide an appeal from an interlocutory order in a
case involving the assessment of taxes by a locality.
20