County of Albemarle v. Camirand ( 2013 )

Present: All the Justices
COUNTY OF ALBEMARLE, ET AL.
OPINION BY
v. Record No. 120711 JUSTICE LEROY F. MILLETTE, JR.
February 28, 2013
CINDY CAMIRAND, ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
Thirteen retired Albemarle County employees (collectively
"the Retirees") sought relief in the circuit court from a
decision of the Albemarle County Board of Supervisors
("Board"). The Board had disallowed payment on a portion of
the Retirees' promised retirement benefits under the County’s
Voluntary Early Retirement Incentive Program ("VERIP") due to a
miscalculation by a County employee prior to the retirements,
and Retirees appealed to the circuit court of Albemarle County.
The County and the Board (hereafter, "the County")
demurred, arguing that the Retirees failed to comply with Code
§ 15.2-1246 by not serving written notice of their appeal on
the clerk of the Board. The Retirees had served the clerk with
a single document entitled "Appeal Bond." The circuit court
overruled the demurrer.
The County then filed for summary judgment on the ground
that no contract existed as a matter of law, as the excess
benefits resulting from the miscalculations had not been
approved by the Board. The circuit court denied summary
judgment, and a jury trial followed. At trial, the circuit
court denied the County's motion to strike the Retirees'
evidence regarding the issue denied in summary judgment. The
jury found in favor of plaintiffs, awarding each of the
thirteen Retirees the amount of the withheld VERIP stipend that
the County claimed would amount to an overpayment if properly
calculated under the program. The County filed this timely
appeal, alleging that the circuit court erred in finding valid
written notice and in determining that the existence of a
contract was a jury issue. We find the first issue
determinative and therefore do not reach the second.
DISCUSSION
The first issue is whether the circuit court was correct
in finding that the Retirees complied with Code § 15.2-1246.
As the content of the document filed is undisputed, this matter
is a pure question of statutory interpretation and is reviewed
de novo. Brown v. Commonwealth, 284 Va. 538, 542, 733 S.E.2d
638, 640 (2012).
Code § 15.2-1246, at the time of the disallowance of
claims, read as follows:
When a claim of any person against a county is
disallowed in whole or in part by the governing body,
if such person is present, he may appeal from the
decision of the governing body within 30 days from the
date of the decision. If the claimant is not present,
the clerk of the governing body shall serve a written
notice of the disallowance on him or his agent, and he
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may appeal from the decision within 30 days after
service of such notice. In no case shall the appeal be
taken after the lapse of six months from the date of
the decision. The appeal shall be filed with the
circuit court for the county. No appeal shall be
allowed unless the amount disallowed exceeds $10. The
disallowance may be appealed by serving written notice
on the clerk of the governing body and executing a bond
to the county, with sufficient surety to be approved by
the clerk of the governing body, with condition for the
faithful prosecution of such appeal, and the payment of
all costs imposed on the appellant by the court.
Code § 15.2-1246 (2010) (emphasis added). *
Each of the Retirees filed a document entitled "Appeal
Bond." Those documents included the following language:
Whereas, the Albemarle County Board of
Supervisors on the 2nd day of June, 2010, denied a
claim made by Principal in the amount of [the
respective amounts claimed by each of the Retirees];
and
Whereas, it is the intention of the Principal to
appeal said denial of claim to the Circuit Court of
Albemarle County. . . .
The Retirees argue that this language substantially complies
with the statutory requirements for notice and, as it provides
the relevant information to identify the decision being
appealed and clearly contemplates an appeal, it should be
accepted as sufficient for the purposes of notice.
*
An amendment to this statute took effect on July 1, 2010,
replacing "executing a bond to the county . . . to the clerk of
the governing body" with "executing a cash or surety bond or
irrevocable letter of credit to the county in the amount of
$250." See 2010 Acts ch. 668. No party contends that this
revision has any effect on the outcome of the present appeal.
As it does not modify the requirement for written notice, the
amendment does not alter today's analysis.
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We disagree. In suits against counties, the Court has
been clear that the statutory notice and bond requirements must
be followed. We recently summarized the law on notice and bond
requirements in suits against counties in Viking Enterprises,
Inc. v. County of Chesterfield, 277 Va. 104, 110-11, 670 S.E.2d
741, 744 (2009):
This Court has held that the requirements of
former Code §§ 15.1-550 et seq., now Code §§ 15.2-
1243 et seq., provide the exclusive procedure for
litigating claims against a county and the [f]ailure
to allege compliance with these statutes is fatal to
an action against a county. . . .
In other words, the notice and bond requirements
set forth in Code § 15.2-1246 are the mode prescribed
for pursuing an appeal from a county's disallowance
of a monetary claim. As [previously] stated by this
Court[]:
The sovereign can be sued only by its own
consent, and a state granting the right to
its citizens to bring suit against it can be
sued only in the mode prescribed. The same
principles apply to a county, which is a
part of the state, which is, as we have
said, a political subdivision of the state,
suable only in the mode prescribed in the
law granting the right to sue.
(Internal quotation marks and citations omitted.)
A party can thus perfect an appeal against a county in a
case such as this only in the manner authorized by the language
of the statute. "In interpreting this statute, courts apply
the plain meaning . . . unless the terms are ambiguous or
applying the plain language would lead to an absurd result."
Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644
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(2012) (internal quotation marks and citation omitted). The
plain language of Code § 15.2-1246 clearly requires both a
written notice of appeal and a bond to be filed with the clerk.
In the instant case, the bond is not titled "Notice of Appeal
and Appeal Bond" and, notably, does not even include the word
"notice" except in reference to the requisite notice of failure
to pay the bond. The statute requires "written notice" and not
mere "implied notice," which is what this Appeal Bond amounts
to. To rule that the bond satisfies the requirements of the
notice would be to render the phrase requiring written notice
superfluous, contrary to basic canons of statutory
construction. See Cook v. Commonwealth, 268 Va. 111, 114, 597
S.E.2d 84, 86 (2004) (stating that "statute[s] should be
interpreted, if possible, to avoid rendering words
superfluous.").
Furthermore, the "Whereas" phrasing traditionally
signifies prefatory language or a preamble in a legal document,
as opposed to the subject of the document itself. A "preamble"
is "[a]n introductory statement in a constitution, statute, or
other document explaining the document's basis and
objective. . . . A preamble often consists of a series of
clauses introduced by the conjunction whereas." Black's Law
Dictionary 1294-95 (9th ed. 2009). "This Court has stated
[that t]he preamble to a statute is no part of it and cannot
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enlarge or confer powers or control the words of the act unless
they are doubtful or ambiguous." Renkey v. County Bd., 272 Va.
369, 373, 634 S.E.2d 352, 355 (2006) (internal quotation marks
and citations omitted). Although we have never explicitly
ruled on the effect of a preamble in a statutorily required
notice document, we find the same principle applicable. Here,
nothing in the remainder of the document outside of the
preamble is suggestive of an intent to function as a notice
document. The document itself is unambiguously an appeal bond,
and ambiguous language in the preamble cannot alter the
function of the document. The clerk's office cannot be
expected to look to prefatory language concerning an "intent to
appeal" and divine a supplementary purpose to the document of
providing actual notice of an appeal.
The Retirees also assert that the language of the statute
appears to permit two methods of perfecting an appeal due to
the repeated use of the word "may" as opposed to "must." We
have said, however, that "consideration of the entire statute
. . . to place its terms in context to ascertain their plain
meaning does not offend the rule [requiring a plain reading]
because it is our duty to interpret the several parts of a
statute as a consistent and harmonious whole so as to
effectuate the legislative goal." Cuccinelli v. Rector &
Visitors of the Univ. of Virginia, 283 Va. 420, 425, 722 S.E.2d
6626, 629 (2012) (internal quotation marks and citations
omitted). A review of the statute that controls here makes it
clear that the word "may" is used because an appeal is
permissible but not required; it does not constitute an
alternative method of perfecting an appeal.
We therefore conclude that the statutorily required
written notice of appeal was insufficient according to the
plain meaning of the statute and, accordingly, the circuit
court erred in failing to sustain the demurrer. As a result,
we do not reach the merits of the issue presented in the second
assignment of error.
CONCLUSION
For the aforementioned reason, we reverse the judgment of
the circuit court, dismiss the Retirees' appeal with prejudice,
and enter final judgment in favor of the County and the Board.
Reversed and final judgment.
JUSTICE MIMS, dissenting.
In this case, the majority reverses a jury’s award of
damages to thirteen retired Albemarle County employees because
it concludes that a document filed with the clerk of the Board
of Supervisors did not comply with Code § 15.2-1246, despite
the fact that the County and the Board acknowledge that they
suffered no prejudice in their defense against the claim. The
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majority’s reasoning elevates form over substance and is not
supported by the statutory text. I therefore must dissent.
Code § 15.2-1246 requires a party appealing from the
denial of a claim against a county to serve “written notice” on
the clerk of the Board of Supervisors. The party also must
execute a bond. While it is undisputed that both notice and
bond are required, the statute does not require the notice to
be filed as a separate, discrete document. It does not contain
the term “notice of appeal.” Cf. Code § 8.01-676.1(A)
(requiring the filing of an appeal bond or irrevocable letter
of credit “simultaneously” with a notice of appeal in an appeal
of right to the Court of Appeals).
In reaching its decision in this case, the majority first
contends that construing the appeal bond to satisfy the
requirement of notice renders the latter superfluous. This
ignores our precedents discussing the purpose of a notice of
appeal. Less than one year ago, we stated that “the purpose of
the notice of appeal is merely to place the opposing party on
notice and to direct the clerk to prepare the record on
appeal.” LaCava v. Commonwealth, 283 Va. 465, 469 n.*, 722
S.E.2d 838, 840 n.* (2012). We specifically restated that
“ ‘[t]he purpose is not to penalize the
appellant but to protect the appellee. If the
required papers are not filed within the time
required, the appellee is entitled to assume
that the litigation is ended, and to act on that
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assumption. Litigation is a serious and
harassing matter, and the right to know when it
is ended is a valuable right.’ ”
Id. (quoting Avery v. County School Board, 192 Va. 329, 330, 64
S.E.2d 767, 770 (1951)) (alterations omitted) (emphasis added).
In this case, the County and the Board expressly acknowledged
having actual notice of the appeal and conceded that the
failure to serve written notice as a separate, discrete
document did not prejudice them. * Accordingly, the complete
function of the notice of appeal was fully discharged.
The majority next contends that the content of the appeal
bond does not adequately inform the County and the Board that
an appeal actually would follow. While the majority
acknowledges that the document states that “[i]t is the
intention of the Principal to appeal,” it holds that language
is merely prefatory or a legally ineffectual preamble.
However, that construction ignores both the substance of the
bond and the language of the statute, which require the
subsequent faithful prosecution of the appeal to avoid default.
In short, there is nothing in the statute to compel the
majority’s conclusion. Nothing in its plain language requires
a party appealing the denial of a claim against a county to
*
We also noted that the notice of appeal directs the clerk
to prepare the record and transmit it to the appellate
tribunal. Id. Here the record arrived successfully both in
the circuit court and this Court.
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file two separate, discrete instruments, and we are precluded
from construing the statute to include requirements the General
Assembly did not impose. See, e.g., Jackson v. Fidelity &
Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005). To
the contrary, the plain language of the statute requires two
functions to be discharged: (1) notice to the parties and the
clerk that the matter is not concluded and (2) provision of
security for the costs of the appellate proceeding. Those
statutory requirements may be fulfilled in a single instrument.
The majority therefore has not applied the plain language
of the statute but rather has adopted an unnecessary and
unsupported construction. The result is egregiously harmful to
the retired employees, who relied to the detriment upon the
County’s erroneous representations. For these reasons, I must
dissent.
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