COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL
QUALITY, ET AL.
MEMORANDUM OPINION * BY
v. Record No. 0769-99-2 JUDGE NELSON T. OVERTON
MARCH 28, 2000
RESIDENTS INVOLVED IN SAVING
THE ENVIRONMENT, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Judge
John R. Butcher, Assistant Attorney General
(Mark L. Earley, Attorney General; Deborah
Love Feild, Assistant Attorney General, on
briefs), for appellants.
Clarence M. Dunnaville, Jr.; David S. Bailey
(Henry L. Marsh, III; Hill, Tucker & Marsh;
David S. Bailey, L.L.C., on brief), for
appellees.
The Commonwealth of Virginia, Department of Environmental
Quality ("DEQ") appeals an award of $185,000 in attorneys' fees
and costs to Residents Involved in Saving the Environment, Inc.,
et al., ("Residents") 1 pursuant to Code § 9-6.14:21. The circuit
court awarded Residents attorneys' fees and costs for legal
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Residents Involved in Saving the Environment, Inc. is an
organization of persons residing and/or owning property near a
landfill site in King and Queen County. Appellees include named
individuals, a church and a farming corporation.
services rendered in connection with Residents' challenge to DEQ's
issuance of a solid waste facility permit to Browning-Ferris
Industries of South Atlantic, Inc. ("BFI") to construct and
operate a landfill in King and Queen County. The award included
Residents' attorneys' fees and costs incurred for proceedings held
in the circuit court and in the appellate courts in the matter.
We hold that the circuit court lacked jurisdiction to award
Residents any attorneys' fees and costs in this matter.
Accordingly, we vacate the award.
FACTS
On June 2, 1993, DEQ issued a solid waste facility permit to
BFI to construct and operate a landfill in King and Queen County.
Residents appealed the decision to issue the permit to the circuit
court. On May 30, 1995, the circuit court entered an order
affirming the decision by DEQ to issue the permit. The May 30,
1995 order does not address attorneys' fees or reserve
jurisdiction to the circuit court to award attorneys' fees at a
later time.
Residents appealed the circuit court decision to this Court.
We reversed the circuit court's decision in Residents Involved in
Saving the Environment, Inc. v. Commonwealth, 22 Va. App. 532, 471
S.E.2d 796 (1996), aff'd in part, vacated in part, Browning-Ferris
Indus. v. Residents Involved in Saving the Environment, Inc., 254
Va. 278, 492 S.E.2d 431 (1997). We held that DEQ failed to make
"an explicit determination of 'no substantial present or potential
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danger to human health or the environment'" as required by Code
§ 10.1-1408.1(D). Id. at 545, 471 S.E.2d at 803 (citation
omitted). We remanded the case to the circuit court for remand to
DEQ to make the required statutory determination. The remand
order did not mention attorneys' fees, nor did Residents raise the
issue of attorneys' fees at that time.
BFI appealed our decision to the Virginia Supreme Court. The
Supreme Court remanded the case to the circuit court with
instructions to remand the matter to DEQ to "consider the existing
record and make the required statutory determination before
issuing a new permit in this case." Browning-Ferris Indus., 254
Va. at 285, 492 S.E.2d at 435. The Supreme Court did not address
the issue of attorneys' fees, nor did Residents raise the issue at
that time.
The circuit court entered an order on December 10, 1997,
remanding the matter to DEQ and ordering DEQ to make an explicit
determination whether the landfill facility "poses a substantial
present, or potential danger to human health or environment"
pursuant to Code § 10.1-1408.1(D). The December 10, 1997 order
also "suspended and set aside" the decision to issue the permit to
BFI.
On December 29, 1997, Residents filed a motion in circuit
court for Residents' attorneys' fees and costs pursuant to Code
§ 9-6.14:21(A), which provides for the recovery of reasonable
costs and attorneys' fees from an agency in certain circumstances.
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The motion included a request for attorneys' fees and costs
incurred in the appellate proceedings as well as the circuit court
proceedings. By order entered March 3, 1999, the circuit court
awarded Residents $185,000 in attorneys' fees, which included
legal services expended in the circuit court and appellate court
proceedings. DEQ appeals the award of the attorneys' fees.
ANALYSIS
The circuit court awarded the attorneys' fees on March 3,
1999, more than twenty-one days after the entry of the May 30,
1995 final order in which the circuit court affirmed the decision
by DEQ to issue the permit. Rule 1:1 provides in pertinent part:
"All final judgments, orders, and decrees, irrespective of terms
of court, 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."
A court order is final where it "'disposes of the whole
subject, gives all the relief that was contemplated, provides with
reasonable completeness for giving effect to the sentence, and
leaves nothing to be done in the cause save to superintend
ministerially the execution of the decree.'" Richardson v.
Gardner, 128 Va. 676, 683, 105 S.E. 225, 227 (1920) (citation
omitted).
The May 30, 1995 order disposed of the whole subject and
granted all contemplated relief by affirming DEQ's issuance of the
permit. Furthermore, the May 30, 1995 order did not reserve
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jurisdiction to the circuit court to award attorneys' fees at a
later time. Moreover, no order was entered modifying, vacating or
suspending the May 30, 1995 final order within twenty-one days of
the entry of that order. "In order to toll the time limitations
of Rule 1:1 . . . the trial judge must issue an order modifying,
vacating or suspending the [order] within twenty-one days of the
entry of [the order]." D'Alessandro v. Commonwealth, 15 Va. App.
163, 167, 423 S.E.2d 199, 201 (1992). Therefore, pursuant to Rule
1:1, we find that the circuit court lacked jurisdiction to award
attorneys' fees and costs to Residents for legal services rendered
in the circuit court proceedings.
In addition, the record contains no specific remand from this
Court or the Supreme Court, instructing the circuit court to award
Residents attorneys' fees incurred on appeal. See O'Loughlin v.
O'Loughlin, 23 Va. App. 690, 691, 479 S.E.2d 98, 98 (1996)
(holding that a specific remand from appellate court is required
for trial court to have jurisdiction to award attorneys' fees
incurred on appeal). Therefore, the circuit court also lacked
jurisdiction to award Residents attorneys' fees and costs expended
on the appeals in this matter.
Residents also argue that pursuant to Code § 9-6.14:21, they
were entitled to attorneys' fees because they "substantially
prevail[ed] on the merits of the case" when the matter was
remanded to DEQ to make the requisite statutory finding before
issuing the permit. See Code § 10.1-1408.1(D). The record does
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not support this contention. However, based on our holding that
the circuit court lacked jurisdiction to award attorneys' fees, we
need not address this argument.
Accordingly, we vacate the circuit court's award of
Residents' attorneys' fees and costs.
Vacated.
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Bray, J., concurring.
I join the majority in concluding that the trial court was
without authority to award Residents those attorneys' fees
incurred while challenging the agency decision on appeal.
However, I concur only in the rationale that the trial court
lacked jurisdiction over the issue in the absence of a
particularized remand from this Court or the Supreme Court.
Former Code § 9-6.14:21 provided, in pertinent part, that:
In any civil case . . . in which any person
contests any agency action, . . . such
person shall be entitled to recover from
that agency . . . reasonable costs and
attorney fees if such person substantially
prevails on the merits of the case and the
agency is found to have acted unreasonably,
unless special circumstances would make an
award unjust. 2
Code § 9-6.14:21 (1981) (amended 1997) (emphasis added). Thus,
the legislature clearly intended that citizens, successful on
the merits in challenging unreasonable agency action, recover
attendant costs and fees, absent unique circumstances.
Manifestly, the determination that a record permits such relief
rests with that tribunal adjudicating the cause.
In O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98
(1996), we addressed a claim for costs and fees related to
2
The 1997 amendment to Code § 9-6.14:21, inapplicable to
the instant proceedings, required a finding that the "agency's
position is not substantially justified," rather than "acted
unreasonably," as a condition to recovery and limited an award
of attorney’s fees to $25,000. Code § 9-6.14:21.
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appeal and, relying upon procedural jurisprudence well
established in this Commonwealth, concluded that an award by the
trial court on remand was impermissible, absent "specific . . .
and particularized instructions to do so." Id. at 694, 479
S.E.2d at 100.
The rationale for the appellate court being
the proper forum to determine the propriety
of an award of attorney's fees for efforts
expended on appeal is clear. The appellate
court has the opportunity to view the record
in its entirety and determine whether the
appeal is frivolous or whether other reasons
exist for requiring additional payment.
Id. at 695, 479 S.E.2d at 100; see also Hughes v. Hughes, 173
Va. 293, 306, 4 S.E.2d 402, 407-08 (1939) (trial court upon
proper remand can "fix a reasonable compensation . . . for
services rendered in" the appellate court); Wilson v. Wilson, 25
Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (trial court has
no "jurisdiction" to award "attorney's fees incurred on appeal"
without "specific remand . . . with particularized
instructions").
Here, Residents failed to initially petition the trial
court, this Court, or the Supreme Court for costs and fees
resulting from a succession of appeals. Thus, the appellate
courts did not address the issue in the exercise of their
respective jurisdictions, and no resolution was contemplated in
the attendant remand orders. Under such circumstances, the
trial court, acting later solely upon jurisdiction conferred and
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limited by remand, was without authority to entertain Residents'
petition for costs and attorneys' fees.
Accordingly, I share the rationale of the majority in
reversing the disputed award because the trial court was without
the requisite jurisdiction, finding it unnecessary to address
the remaining related issues undertaken by my colleagues.
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