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COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY, et al.
RESIDENTS INVOLVED IN
SAVING THE ENVRIONMENT, et al.
MARCH 28, 2000
Record No. 0769-99-2
COMMONWEALTH OF VIRGINIA, DEPARTMENT OF
ENVIRONMENTAL QUALITY, ET AL.
RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT,
INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Judge
Present: Judge Bray, Senior Judges Cole and
Argued at Richmond, Virginia
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.
MEMORANDUM OPINION BY JUDGE
NELSON T. OVERTON
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") pursuant to Code ? 9-6.14:21. The
circuit court awarded Residents attorneys’ fees and costs for
legal 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.
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 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. 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.
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)
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 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
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 not support this
contention. However, based on our holding that the circuit court
lacked jurisdiction to award attorneys’ fees, we need not address
Accordingly, we vacate the circuit court’s
award of Residents’ attorneys’ fees and costs.
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. 
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
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 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
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.
 Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.
 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
 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.