Virginia Lawyers Weekly//April 10, 2019
Virginia Lawyers Weekly//April 10, 2019//
The 30-day period in which to appeal a jury’s just compensation award in this condemnation case began to run when the circuit court entered its order confirming the award.
The confirmation order is the final order in the case under Code § 25.1-239. The fact that the order stated “the [c]ourt shall retain jurisdiction” over matters relating to the distribution of funds does not change this result.
Appellant’s notice of appeal, which was filed more than 30 days after the circuit court issued its confirmation order, was untimely and the appeal is dismissed.
A jury awarded just compensation in this condemnation case. The circuit court issued a Sept. 11, 2017, confirmation order, which stated in part, “the [c]ourt shall retain jurisdiction.” On Nov. 7, 2017, the circuit court, which had been holding funds connected to the case, issued a distribution order. Dwyer, the appellant, appealed the Nov. 7 distribution order by filing a notice of appeal on Nov. 30. “In his appeal, Dwyer only assigns error to rulings related to the September 11, 2017 order.”
The Town of Culpeper has moved to dismiss the appeal as untimely. Culpeper argues that the Sept. 11 confirmation order is the final order in the case, and that the 30-day period in which to file an appeal began running then. Dwyer responds that the Sept. 11 order was not the final order and points to the retained-jurisdiction language. “We find Dwyer’s argument unpersuasive.”
“Code § 25.1-239(A) provides that ‘[t]he order confirming, altering or modifying the report of just compensation shall be final.’ … Subsection (B) of Code § 25.1-239 provides, in part, that: ‘[a]ny party aggrieved thereby may apply for an appeal to the Supreme Court.’ That subsection goes on to state that if the order sets aside the report of just compensation and awards a new trial, that order shall not be considered final for purposes of appeal. …
“Read in context, the language of the statute manifests an intent that the word ‘shall’ is mandatory. … The September 11, 2017 order was the final order for purposes of appealing the just compensation award under Code § 25.1-239. The notice of appeal was not filed until November 30, 2017 and was therefore untimely under Rule 5:9(a).
“Dwyer’s argument that the circuit court specifically retained jurisdiction in the September 11, 2017 order, and that this made it not a final order also fails. Dwyer points to Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555 (2002) and Johnson v. Woodward, 281 Va. 403 (2011), to support his claim that the order was not final for purposes of appeal.”
But those cases did not deal with condemnation actions, which are unique because they are “two-stage proceedings.” The first stage, under Code § 25.1-239, “addresses the confirmation, alteration, or modification of the report of just compensation[.] … The second stage deals with the distribution of the funds paid into the circuit court, and any controversy pertaining thereto, under Code §§ 25.1-240 and 25.1-241. …
Confirmation orders are “separate and distinct” from distribution orders. “By statute, they can be appealed separately with neither impacting the other.”
The circuit court’s confirmation order stated it was retaining jurisdiction for the limited purpose of deciding a motion pertaining to the distribution of funds and any other disputes in that regard.
“As such, the circuit court clearly did not intend to, nor did it, retain jurisdiction over the portion of the order addressing the confirmation of the report of just compensation. Rather, it merely accomplished what the statute would have done had the circuit court remained silent, and that was to retain jurisdiction to hear the second stage of the condemnation proceedings.”
The Sept. 11, 2017, confirmation order was the final order in this case. Dwyer did not timely appeal.
Dwyer v. Town of Culpeper. (Published Order) Record No. 180178 (Culpeper Circuit Court) March 28, 2019; Lawrence Steven Emmert, Joseph Thomas Waldo, Stephen John Clarke for Appellant; Jeffrey Alan Huber, Scott David Helsel for Appellee. VLW 019-6-019, 3 pp.