Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
EDWIN W. LYNCH, JR.,
OPINION BY
v. Record No. 970278 SENIOR JUSTICE HENRY H. WHITING
January 9, 1998
COMMONWEALTH TRANSPORTATION
COMMISSIONER, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
The issue in this sequel to a condemnation proceeding
involves a landowner's liability for refund of that amount of the
sum previously deposited with the court by the condemning
authority and withdrawn by the landowner that exceeded the amount
of the subsequent award.
The Commonwealth Transportation Commissioner (the
Commissioner) planned to take 9.270 acres of a larger tract of
approximately 75 acres owned by Edwin W. Lynch, Jr., in Fairfax
County for the improvement of Interstate Route 95. The 75 acres
was subject to a deed of trust then held by Dominion National
Bank of Virginia, later by First Union Bank of Virginia, Dominion
Bank's successor in title. Both banks are referred to herein as
the lienholder. The deed of trust secured the payment of Lynch's
$3,500,000 obligation to the bank and in pertinent part provided
that:
Borrower or Grantor shall appear in and prosecute
any such [condemnation] action or proceeding unless
otherwise directed by Lender in writing. . . . The
proceeds of any award, payment or claim for damages
. . . in connection with any condemnation or other
taking, whether direct or indirect . . . are hereby
assigned to and shall be paid to Lender[.]
. . . Unless Borrower and Lender otherwise agree
in writing, any application of proceeds to principal
shall not extend or postpone the due date of the
[monthly installment payments of principal and
interest] or change the amount of such installments.
Because the Commissioner desired immediate possession of the
9.270 acres and his evaluation of the land taken was $1,016,755,
he deposited that sum with the clerk of the circuit court under
the provisions of Code § 33.1-120. 1 The Commissioner also
executed and recorded a certificate of take naming Lynch as the
owner of the property.
Lynch then took advantage of Code § 33.1-124, which
authorized him to petition the court to order the withdrawal of
these funds. His petition alleged that he and Dominion Bank were
the only parties entitled to receive the funds and that the bank
had agreed to release its lien on the property taken "through a
Deed of Partial Release." In a withdrawal order requested by
Lynch, the court ordered the deposited funds to be paid to Lynch
in care of his attorney, who was directed to "use such funds as
are necessary . . . to satisfy the Deeds of Trust . . . currently
owing on the property." The order also provided that if the
award was less than the deposited funds, judgment for the excess
amount of the deposit shall be entered for the Commissioner
against "any person [who] has been paid any greater sum than that
to which he is entitled as determined by the award."
Upon demand by the lienholder, Lynch endorsed the clerk's
November 26, 1990, check of $1,016,755, "[p]ay to order of
1
Code § 33.1-120 provides in pertinent part that "[t]he
Commissioner shall pay . . . to the clerk . . . such sum as [the
Commissioner] shall estimate to be the fair value of the land
taken . . . before entering upon, or taking possession of, such
land [prior to filing a condemnation proceeding]."
Dominion Bank for credit to account of Edwin W. Lynch, Jr." The
proceeds of the check were applied by the lienholder in partial
discharge of the obligation secured by its deed of trust.
In December 1991, the Commissioner filed a condemnation
petition naming Lynch as the only defendant. Lynch filed an
answer and grounds of defense in which he asserted that the offer
to purchase "was grossly inadequate."
Following a trial before a condemnation commission, the
commission fixed the value of the land taken at $740,000 with no
damages to the residue. Over Lynch's objection, the court
confirmed the commission's report and entered judgment against
Lynch for $276,755, the difference between the amount of the
deposit and the amount of the award. We awarded Lynch an appeal,
reversed the judgment, and remanded the case for a new trial
because of errors in the exclusion of certain evidence. Lynch v.
Commonwealth Transp. Comm'r, 247 Va. 388, 394, 442 S.E.2d 388,
391 (1994).
At the new trial, a different condemnation commission fixed
the value of the land taken at $451,000 with no damages to the
residue. The court confirmed the commissioners' report but
retained jurisdiction to resolve a dispute concerning the
identity of the "person, firm or corporation (if any) which must
refund the excess [of $565,755 representing the amount by which
the deposit exceeded the commissioners' award] and against which
judgment should be entered pursuant to [Code] § 33.1-128."
At the same time, the court ordered the lienholder to be
joined as a party to the action "for the purpose of determining
[the lienholder's] liability to return excess condemnation
proceeds pursuant to [Code] § 33.1-128." Following argument and
submission of memoranda, in a written opinion, Judge Richard J.
Jamborsky ruled that since Lynch had withdrawn the amount of the
deposit, he, not the lienholder, became liable to the
Commissioner for the repayment of the excess under the provisions
of Code § 33.1-128. Later, Judge F. Bruce Bach entered an order
in conformity with Judge Jamborsky's opinion. Lynch appeals.
Code § 33.1-128 provides in pertinent part:
In the event of an award in a condemnation
proceeding being of a lesser amount than that deposited
with the court, the Commissioner shall recover the
amount of such excess and, if any person has been paid
a greater sum than that to which he is entitled as
determined by the award, judgment shall be entered for
the Commissioner against such person for the amount of
such excess.
(emphasis added).
Well-settled rules of statutory interpretation guide us in
determining whether Lynch is liable for payment of the excess
deposit.
If language is clear and unambiguous, there is no
need for construction by the court; the plain meaning
and intent of the enactment will be given it. School
Board of Chesterfield County v. School Board of the
City of Richmond, 219 Va. 244, 250, 247 S.E.2d 380, 384
(1978). When an enactment is clear and unequivocal,
general rules of construction of statutes of doubtful
meaning do not apply. Id. at 250-51, 247 S.E.2d at
384. Therefore, when the language of an enactment is
free from ambiguity, resort to legislative history and
extrinsic facts is not permitted because we take the
words as written to determine their meaning.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
Lynch contends that there is no ambiguity in the language of
the quoted portion of Code § 33.1-128 and that the withdrawal
order "tracks" this language. We agree. Therefore, under the
principles articulated in Brown, we do not consider Lynch's
extended discussion of (1) whether he "received" the proceeds of
the check, or (2) the differing statutory language governing
eminent domain proceedings which expressly refers to an "owner"
and the statute under consideration which refers to "any person
[who] has been paid." We simply apply the statute and order as
written and determine whether Lynch "has been paid" the deposit.
The Commissioner and the lienholder maintain that Lynch was
paid because he received the deposit. 2 Lynch responds that he
has not been "paid" within the meaning of the statute and order
for the following reasons.
First, Lynch asserts he was not "paid" because in the deed
of trust he assigned the "deposit" to the lienholder. We will
assume, but not decide, that Lynch is correct in his contention
that the earlier-quoted language of the deed of trust encompassed
an alleged assignment of any deposit as well as any later award
in a condemnation action. However, Lynch also reasons that this
"assignment operates as a complete divestiture of all rights from
the assignor and vests those rights in the assignee." We do not
agree.
The deed of trust provided that Lynch "shall appear in and
2
On appeal, the Commissioner contends that the lienholder was
also "paid" within the meaning of the statute. We do not consider
the Commissioner's argument that the lienholder thus became
jointly and severally liable with Lynch to the Commissioner for
the excess deposit. The record does not indicate that this
argument was asserted in the trial court, Rule 5:25, and the
Commissioner did not assign cross-error to the action of the court
in entering judgment solely against Lynch, Rule 5:18.
prosecute any such [condemnation] action or proceeding unless
otherwise directed by Lender in writing." The lienholder never
directed "otherwise," and, in fact, Lynch did "appear in and
prosecute" the action. His "prosecution" included his filing a
petition to withdraw the deposit. Indeed, at Lynch's request the
court ordered the deposit "disburse[d]" to him. Thus, the
alleged assignment did not divest Lynch of all rights in the
deposit.
Next, Lynch argues that he was not "paid" any money. He
reasons that
[a]lthough the Clerk's check was made payable to
him, [he] had no power to cash the check and no control
or discretion as to how to apply the proceeds. It must
be remembered that pursuant to the Payment Order . . .
the check was disbursed in care of Lynch's attorney,
who was ordered to "use such funds as are necessary, if
any, to satisfy or partially satisfy the Deeds of Trust
. . . currently owing on the property."
Lynch concludes that because the withdrawal order required his
counsel to use the funds to satisfy the lienholder's deed of
trust, he was "a mere conduit whose only role was to endorse the
check -- the real payee was the [lienholder]." We disagree.
If the language of the deed of trust gave Lynch no right to
these proceeds, as he apparently contends, then he need not have
petitioned for an early withdrawal and thus subjected himself to
possible liability for a refund of the excess. Moreover, if the
lienholder exercised its right under the deed of trust to require
Lynch to petition for such withdrawal, as he contends, then on
his motion, the court could have protected him from liability for
payment of any possible excess.
Lynch was the payee of the check and the order only required
his attorney to "use such funds as are necessary, if any, to
satisfy or partially satisfy" Lynch's deed of trust. The
attorney could have negotiated with the lienholder for a
proration of the deposit between Lynch and the lienholder, based
on the value of the property taken in relation to the residue of
the land still covered by the deed of trust. And, if they could
not agree, under the provisions of Code § 33.1-124, Lynch could
have petitioned the court for a hearing to resolve this issue and
to give him appropriate protection against liability for a return
of any excess deposit ultimately paid by Lynch to the lienholder.
In pertinent part, Code § 33.1-l24 states that "if the
record in the proceeding discloses any . . . dispute as to the
persons entitled to such distribution [of the deposit] or to any
interest or share therein, the court shall direct such
proceedings as are provided by [Code] § 25-46.28 for the
distribution of awards." Code § 25-46.28 provides in part that
"[i]f it appears to the court that there exists a controversy
among claimants to the fund . . ., the court shall enter an order
setting a time for hearing the case and determining the rights
and claims of all persons entitled to the fund or to any interest
or share therein."
These statutory provisions, coupled with Rule 3:9A,
authorized Lynch to petition the court to join the lienholder as
a party and petition the court either to order the check made
payable to the lienholder or make specific provisions for the
lienholder's liability for refund of any excess withdrawal. 3
Lynch filed no such petition; in fact, he simply requested that
the court enter the withdrawal order which imposed liability for
the excess upon anyone to whom the excess was "paid." And we are
of opinion that under the circumstances of this case, Lynch was
the person who was "paid" within the meaning of the statute and
order.
For these reasons, we conclude that the trial court
correctly imposed liability upon Lynch for payment of such
excess. Accordingly, we will affirm the trial court's judgment.
Affirmed.
3
As pertinent, Rule 3:9A provides:
A person who is subject to service of process may be
joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the subject
of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair or
impede his ability to protect that interest or (ii) leave any
of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.