Joel Kossman v. Commonwealth, DMV , 24 Va. App. 762 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Overton
Argued at Norfolk, Virginia
JOEL KOSSMAN
OPINION BY
v. Record No. 2409-96-1 JUDGE RICHARD S. BRAY
MAY 27, 1997
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF MOTOR VEHICLES AND
MOTOR VEHICLE DEALER BOARD
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Judge
John D. Hooker, Jr. (John D. Hooker, Jr. &
Associates, on brief), for appellant.
Eric K. G. Fiske, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellees.
Joel Kossman asserted a claim against the Motor Vehicle
Transaction Recovery Fund (Fund) pursuant to Code § 46.2-1527.3.
Applying provisions of the statute which pertained when Kossman
lodged his claim, the Department of Motor Vehicles (DMV), acting
through the Commissioner, and, later, the Motor Vehicle Dealer
Board (MVDB) determined that Kossman did not qualify for relief.
Kossman sought judicial review in accordance with the Virginia
Administrative Process Act (VAPA), arguing that his claim was
governed by former Code § 46.2-1523, the statute in effect upon
the accrual of his cause of action. The trial court, however,
affirmed the agency decision, and Kossman appeals. Finding no
error, we affirm the order.
I. FACTS
The substantive facts are uncontroverted. In January 1993,
Kossman loaned $75,000 to Edward J. Souldourian, a licensed motor
vehicle salesperson, to finance the purchase of motor vehicles
for resale. When Souldourian defaulted in the terms of
repayment, Kossman obtained judgment on October 17, 1994, for
Souldourian's "fraudulent" conduct. Kossman thereafter pursued
recovery for his loss from the Motor Vehicle Transaction Recovery
Fund, Code §§ 46.2-1527.1 to -1527.8, through a letter claim
dated December 5, 1994.
Code §§ 46.2-1522 to -1527 were the predecessor statutes to
Code §§ 46.2-1527.1 to -1527.8. Former Code § 46.2-1523
provided, in pertinent part, that:
any person . . . awarded a final judgment in
a court of competent jurisdiction in the
Commonwealth for any loss or damage by reason
of any fraud practiced on him or fraudulent
representation made to him by a licensed or
registered motor vehicle dealer or one of a
dealer's salespersons acting for the dealer
or within the scope of his employment, or for
any loss or damage by reason of the violation
by a dealer or salesperson of any of the
provisions of this chapter in connection with
the purchase of a motor vehicle on or after
January 1, 1989, . . . may file a verified
claim with the Commissioner, requesting
payment from the Fund of the amount unpaid on
the judgment. The claim shall be filed with
the Commissioner no sooner than thirty days
and no later than twelve months after the
judgment becomes final.
(Emphasis added.) The General Assembly repealed Code
§ 46.2-1523, enacting Code § 46.2-1527.3, see 1994 Va. Acts, ch.
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478, effective April 8, 1994, which directed that "the
Commissioner . . . only consider for payment, claims submitted by
retail purchasers of motor vehicles, and for purchases of motor
vehicles by licensed or registered motor vehicle dealers who
contribute to the Fund." 1 Id.
Acting on Kossman's claim of December 5, 1994, the
Commissioner applied Code § 46.2-1527.3 and denied Kossman
relief. In correspondence dated March 14, 1996, Kossman
requested reconsideration, contending that his claim was
controlled by the former statute, in effect "at the time the
fraud was committed," which did not contain the exclusionary
2
language of Code § 46.2-1527.3. In response, the MVDB noted the
distinctions between the current and former statutes and applied
Code § 46.2-1527.3 to determine that Kossman was not a qualified
claimant, a decision affirmed by the trial court on Kossman's
appeal. 3 See Code § 9-6.14:17. Kossman again appeals, arguing
1
Kossman concedes that he would not qualify for relief
pursuant to the amended statute.
2
Effective January 1, 1996, the legislature vested the MVDB
with responsibility to administer Code §§ 46.2-1527.1 to -1527.8.
See 1995 Va. Acts, chs. 767, 816.
3
Appellees contend that Kossman's failure to properly
perfect an appeal of the original ruling of the Commissioner in
accordance with Rule 2A:2 precluded judicial review of the
administrative decision, notwithstanding his subsequent request
for reconsideration and the attendant ruling of the MVDB.
Rule 2A:2 provides for appeal of the "final order in the
case decision" to the appropriate circuit court. Code § 9-6.14:4
defines "case decision" as "any agency proceeding or
determination that . . . a named party . . . is not . . . in
compliance with any existing requirement for obtaining . . . [a]
right or benefit." Under the instant circumstances, the MVDB
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that his claim is governed by the statute in effect when his
cause of action against Souldourian first arose, former Code
§ 46.2-1523, and that application of Code
§ 46.2-1527.3 deprives him of a "substantive property right"
without due process.
II. RECOVERY FROM THE FUND
On appeal of agency action governed by the VAPA, the
reviewing court must defer to the agency resolution of factual
issues, "ascertaining [only] whether there was substantial
evidence in the . . . record upon which the agency as the trier
of the facts could reasonably find them to be as it did." Code
§ 9-6.14:17. "In contrast, judicial review of a 'legal issue'
requires 'little deference,' unless it . . . 'falls within an
agency's area of particular expertise.'" Environmental Defense
Fund, Inc. v. State Water Control Bd., 15 Va. App. 271, 278, 422
S.E.2d 608, 612 (1992) (quoting Johnston-Willis Ltd. v. Kenley,
6 Va. App. 231, 243-46, 369 S.E.2d 1, 8 (1988)). This principle
"recognizes the 'special competence' of the judiciary to decide
issues of 'common law,' 'constitutional law' or 'statutory
interpretation,' distinct from 'findings of fact.'" Id. (quoting
Johnston-Willis, 6 Va. App. at 243-46, 369 S.E.2d at 8). The
party complaining of agency action must "demonstrate an error of
law" subject to judicial review. Code § 9-6.14:17.
decision of March 22, 1996, was the "final order in the case
decision," which Kossman timely appealed to this Court.
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"When the wording of a statute is clear and unambiguous, its
plain meaning is to be accepted without resort to rules of
interpretation." Commonwealth, Dep't of Mines, Minerals & Energy
v. May Bros., 11 Va. App. 115, 118, 396 S.E.2d 695, 696 (1990).
The legislature, in enacting both Code §§ 46.2-1523 and
46.2-1527.3, established the "Fund," designating it a "special
fund" "to pay claims" arising from "unpaid judgments, as provided
for in § 46.2-1527.3 [former 46.2-1523]," and "for no other
purpose." See Code §§ 46.2-1522, -1527.1. A claim cognizable
under either statute was predicated upon "a final judgment
[awarded] in a court of competent jurisdiction," and could not be
filed "sooner than thirty days . . . after the judgment becomes
final." Code §§ 46.2-1523, -1527.3. Thus, Kossman's statutory
claim against the Fund was not extant until judgment against
Souldourian on October 17, 1994, a time clearly governed by Code
§ 46.2-1527.3, effective April 8, 1994.
Kossman's contention that application of Code § 46.2-1527.3
to bar his claim deprived him of a "vested right" in violation of
due process is without merit. "[D]eprivation of a liberty or
property interest" must be proven to implicate due process.
Jackson v. W., 14 Va. App. 391, 406, 419 S.E.2d 385, 393 (1992).
The repeal of Code § 46.2-1523 did not impair Kossman's cause of
action against Souldourian for fraud, and the dependent statutory
claim against the Fund did not arise until after the effective
date of Code § 46.2-1527.3. Thus, no proprietary interest of
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Kossman to claim against the Fund was compromised by either the
legislative or administrative acts in issue. See, e.g., Roller
v. Basic Constr. Co., 238 Va. 321, 328-30, 384 S.E.2d 323, 326-27
(1989) (rights of parties not fixed under Workers' Compensation
Act until occurrence of "injury by accident," and thus prior
amendment did not affect substantive or vested right).
Accordingly, Kossman's claim was properly denied pursuant to
the provisions of Code § 46.2-1527.3, and we affirm the order of
the trial court.
Affirmed.
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