Richard H. Dwyer, Appellant,
Town of Culpeper, Appellee.
an appeal from a judgment rendered by the Circuit Court of
Culpeper County No. 2014-L-778.
All the Justices
consideration of the record, briefs, and argument of counsel,
the Court is of opinion that the notice of appeal challenging
the just compensation award was not timely filed.
H. Dwyer appealed from a November 7, 2017 order distributing
funds held by the circuit court in this condemnation
proceeding. The Town of Culpeper moved to dismiss the appeal
as untimely. Specifically, the Town argued that the notice of
appeal, filed November 30, 2017, was filed more than 30 days
after the September 11, 2017 order confirming the jury's
award of just compensation.[*] The Town asserted that under
Code § 25.1-239, that order is a final order for
purposes of appeal in a condemnation proceeding. Dwyer argued
that the September 11, 2017 order was not final for purposes
of appeal because it contained the language "the [c]ourt
shall retain jurisdiction." We find Dwyer's argument
actions are "two-stage proceedings." Williams
v. Fairfax Cnty. Redev. & Hous. Auth., 227 Va. 309,
313 (1984). The General Assembly has provided a unique
framework by which courts conduct condemnation proceedings.
"[U]nder settled principles of statutory construction,
we are bound by the plain meaning of the statutory
language." Ramsey v. Comm'r of Highways,
289 Va. 490, 495 (2015).
§ 25.1-239(A) provides that "[t]he order
confirming, altering or modifying the report of just
compensation shall be final." "[T]he use of the
term 'shall' in a statute is generally construed as
directory rather than mandatory, and, consequently, no
specific, exclusive remedy applies unless the statute
manifests a contrary intent." Rickman v.
Commonwealth, 294 Va. 531, 538 (2017) (citations and
quotation marks omitted). 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.
Code § 25.1-239(B). Read in context, the language of the
statute manifests an intent that the word "shall"
is mandatory. The General Assembly clearly intended to
provide for the finality of the order confirming, altering,
or modifying the report of just compensation. 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).
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. However,
neither of those cases dealt with the unique situation
presented in condemnation proceedings. As previously stated,
condemnation actions are "two-stage proceedings."
Williams, 227 Va. at 313. The first stage addresses
the confirmation, alteration, or modification of the report
of just compensation under Code § 25.1-239. 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. Code §
25.1-241(C) provides for a separate appeal of an order, like
the November 7, 2017 order, that determines "the rights
and claims of the persons entitled to" the funds paid to
the court and "direct[s] the disbursement among the
persons entitled thereto." That appeal is governed
"as provided in subsection B of [Code] §
25.1-239." Code § 25.1-241(C). Each proceeding is
separate and distinct and each provides for an appeal from
any decision rendered therein. The uniqueness of a
condemnation proceeding renders the holding of Super
Fresh and its progeny inapplicable. Where, as in
Super Fresh, there is only one final order that
addresses the entire case, any retention of jurisdiction by
the circuit court in the order applies to the entire case.
However, a confirmation order entered pursuant to Code §
25.1-239, is separate and distinct from the distribution
order. By statute, they can be appealed separately with
neither impacting the other. In this case, the circuit court
specifically ruled that it:
ORDERED, ADJUDGED, and DECREED that, pursuant to Va. Code
§ 25.1-240 and § 25.1-241, the Court shall retain
jurisdiction in this case solely for the purpose of (1)
deciding the Town's Interest Credit Motion, if necessary,
and (2) deciding any disputes between competing claimants, if
any, to the Town's deposit of $295, 773 and interest and
then distributing these funds to the appropriate person. . .
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 plain meaning of Code § 25.1-239, the General
Assembly clearly intended to allow the appeal of a just
compensation award to proceed immediately from "the
order confirming, altering or modifying the report of just
compensation." The September 11, 2017 order
"confirming . . . the report of just compensation"
was the final order for purposes of appeal. Code §
25.1-239(A). Dwyer did not timely appeal from that order.
Rule 5:9(a). Accordingly, the Court dismisses the appeal in
order shall be published in the Virginia Reports and
certified to the Circuit Court of Culpeper County.
[*] In his appeal, Dwyer only assigns
error to rulings related to the September 11, 2017