Virginia Lawyers Weekly VA Lawyers Weekly
Where the general district court did not order appellee to post an appeal bond, the circuit court correctly remanded the case to the GDC to issue a bond order.
Background
In the general district court, appellants Montalvo and Blake filed a warrant in detinue to compel appellee Couk to return two dogs she allegedly was unlawfully keeping. The GDC awarded Montalvo and Blake the dogs or compensation of $1,000 for each dog.
Couk sought to appeal. “Through counsel, she asked about the bond amount and whether she needed to file a motion to set bond. A deputy clerk informed her there was ‘no appeal bond per the judge.’ The GDC transferred the case to the circuit court without the posting of an appeal bond.
“In the circuit court, Blake and Montalvo moved to dismiss because Couk had not posted bond within 30 days of judgment as required by Code § 16.1-107(A).”
The circuit dismissed the appeal for lack of jurisdiction but upon Couk’s motion to vacate or reconsider, the circuit court remanded the case to the GDC with an order requiring the GDC to set and order bond.
Blake and Montalvo appeal.
Discussion
“The crux of the disagreement, and the bulk of appellants’ assigned errors, is whether Couk was obligated to post an adequate bond under Code § 16.1-107(A), regardless of whether the GDC ordered it, and if the failure to do so was fatal to her appeal in the circuit court.
“Code § 16.1-107(A) is clear that ‘[n]o appeal shall be allowed unless and until the party applying for the same or someone for him shall give bond.’
“Such bond must be ‘in an amount and with sufficient surety approved by the judge or by his clerk if there is one, or in an amount sufficient to satisfy the judgment of the court in which it was rendered.’ …
“It is well established that ‘the posting of a bond is mandatory, and failure to post the bond deprives the circuit court of jurisdiction to hear the appeal and results in dismissal of the appeal.’”
‘Logical absurdities’
“Appellants argue that the language of Code § 16.1-107(A) places the responsibility upon the appealing party to post bond, regardless of whether the GDC orders it. Although we appreciate that the statute speaks in terms of what an appealing party must do, if we were to accept appellants’ argument here, it leads to logical absurdities when considered in context.
“Primarily, we fail to see why the legislature would have enacted Code § 16.1-109(B)(ii), which the circuit court followed here in remanding the case to the GDC, if not for the possibility that a GDC might ‘erroneously fail[] to require the bond or other security.’ …
“Where, as here, ‘the error or failure is discovered after the case has been sent to the circuit court, the circuit court shall return the case to the district court for the district court to order the appellant or applicant for removal to cure the defect or post the required bond.’ …
“This is exactly what took place, which appellants nonetheless argue was error.”
‘Sharma’
“Our rationale in Sharma v. Sharma, 46 Va. App. 584 (2005), decided prior to the enactment of Code § 16.1-109(B), demonstrates how the enactment of Code § 16.1-109(B) undermines appellants’ argument.
“Prior to the addition of subsection (B) to Code § 16.1-109,6 we held ‘Code § 16.1-109 comes into play only when the appeal bond posted is inadequate or in some fashion is defective.’ …
“We held that it provided no remedy either when the lower court fails to order bond or when it erroneously sets it at $0. …
“Without the provisions of subsection (B), the language of ‘Code § 16.1-109 presuppose[d] that an appeal bond was posted and the circuit court has jurisdiction to increase the bond.’ …
“Therefore, ‘the circuit court … has no jurisdiction to implement Code § 16.1-109 if no appeal bond was posted,’ … and ‘it [wa]s the appellant’s responsibility to have the [lower court’s] judge or clerk to set a bond and approve the surety[.]’ …
“But the logic of Sharma evaporates when one considers the purpose and effect of subsection (B). The provision only comes into play when there is ‘a defect in such bond or other security as a result of an error of the district court, or … the district court erroneously failed to require the bond or other security.’…
“Inherently, it presupposes a scenario where, as here, the GDC might fail to set or order bond and the matter nonetheless is appealed to the circuit court.
“Therefore, it cannot be incumbent upon the party appealing to the circuit court to identify the error before noting their appeal, or require that party to post some un-specified, un-ordered bond, otherwise the provisions of Code § 16.1-109(B) would be rendered superfluous.
“So, to the extent that Sharma stands for the principle that an appellant has no remedy if a lower court either fails to order bond or orders a deficient bond, it is abrogated by the subsequent enactment of the language in Code § 16.1-109(B).
“Accordingly, we find no error in the circuit court following the procedures set forth in Code § 16.1-109(B)(ii) and remanding the case to the GDC.”
Affirmed.
Blake, et al. v. Couk, Record No. 0612-22-4, April 25, 2023. CAV (unpublished opinion) (AtLee Jr.). From the Circuit Court of Prince William County (Horan). J. Scott Krein for appellants. No brief or argument for appellee. VLW 023-7-150, 8 pp.
