Alliance to Save the Mattaponi v. Virginia Marine Resources Commissin

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Kelsey and Retired Judge Stephens*
Argued at Richmond, Virginia
ALLIANCE TO SAVE THE MATTAPONI,
CHESAPEAKE BAY FOUNDATION, INC.,
MATTAPONI AND PAMUNKEY RIVERS ASSOCIATION,
SIERRA CLUB, PAULETTE P. BERBERICH,
WARREN MOUNTCASTLE, ROSE MARY ZELLNER
AND RAY WATSON
OPINION BY
v. Record No. 2700-03-1 JUDGE D. ARTHUR KELSEY
AUGUST 31, 2004
VIRGINIA MARINE RESOURCES COMMISSION
AND THE CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Marc Jacobson, Judge
Deborah M. Murray (Southern Environmental Law Center, on
briefs), for appellants.
John K. Byrum Jr., Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Roger L. Chaffe, Senior Assistant Attorney
General; Carl Josephson, Assistant Attorney General, on brief), for
appellee Virginia Marine Resources Commission.
George A. Somerville (James E. Ryan, Jr.; M. Scott Hart; Stuart E.
Katz, City Attorney; Allen L. Jackson, Chief Deputy City Attorney;
Troutman Sanders LLP, on brief), for appellee City of Newport
News.
The City of Newport News filed a circuit court appeal under the Virginia Administrative
Process Act (VAPA), Code § 2.2-4000 et seq. challenging a decision of the Virginia Marine
Resources Commission (VMRC). Alliance To Save The Mattaponi, et al. sought to intervene in
the VAPA circuit court case. On September 25, 2003, the circuit court denied the motion to
*
Retired Judge J. Warren Stephens took part in the consideration of this case by
designation pursuant to Code § 17.1-400.
intervene. Alliance filed a notice of appeal on October 20, 2003, which we recorded as Record
No. 2700-03-1.
On December 19, 2003, we directed the parties to file briefs addressing the question
whether Code § 17.1-405(4) authorizes this Court to exercise appellate jurisdiction over the
circuit court’s order denying intervention. Having reviewed the briefs and heard oral argument,
we hold that the circuit court’s order was not final and falls outside our interlocutory appellate
jurisdiction under Code § 17.1-405(4). See generally Thrasher v. Lustig, 204 Va. 399, 403, 131
S.E.2d 286, 289 (1963) (noting that “as a general rule interlocutory decrees or orders overruling
motions as to joinder of parties, or a substitution of parties, are not appealable”); cf. Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370 (1987) (holding that denial of permissive
intervention cannot be subject to interlocutory appeal); Bagwell v. United Mine Workers, 244
Va. 463, 474, 423 S.E.2d 349, 356 (1992), rev’d on other grounds, 512 U.S. 821 (1994) (holding
that an “order denying intervention was not a final, appealable order because it did not dispose of
the whole subject matter of the case,” and thus, the denial order motion can be challenged in an
appeal of the final order).1
1
We disagree that Jones v. Rhea, 130 Va. 345, 369, 107 S.E. 814, 822 (1921), concludes
otherwise. In that case, the Virginia Supreme Court held that it had appellate jurisdiction over an
interlocutory order denying intervention under a statute authorizing appeal of “any” order of the
State Corporation Commission. Id. The statute did “not use the word ‘final.’” Id. Though we
acknowledge the remark in Jones along the lines that the denial order was “final” as to the
intervenors, we reject it as non-binding dicta. See generally Newman v. Newman, 42 Va. App.
557, 566, 593 S.E.2d 533, 538 (2004) (en banc) (“Dicta cannot ‘serve as a source of binding
authority in American jurisprudence.’” (citation omitted)). Cf. Richmond, Fredericksburg and
Potomac R.R. Co. v. Johnson, 99 Va. 282, 284, 38 S.E. 195, 195 (1901) (referring to Jeter v.
Board, 68 (27 Gratt.) Va. 910, 1876 Va. LEXIS 82 (1876), the only citation relied upon in Jones
for its dicta, the Supreme Court stated: “In that case, however, the court was dealing with a final
order, and a glance at the opinion is sufficient to show that the language used by the learned
judge was obiter, and it has been so held by this court in Tucker v. Sandridge, 82 Va. 532.”).
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In their briefs, the parties advise that the underlying VAPA circuit court action has been
settled by Newport News and the VMRC. Based upon that settlement, the circuit court entered a
“Final Decree” remanding the matter back to the VMRC for further proceedings and dismissing
“with prejudice” the VAPA proceeding commenced by Newport News. Alliance contends the
entry of the Final Decree “may render moot this Court’s question regarding its jurisdiction over
the Alliance’s appeal.” This observation ⎯ however valid with respect to an appeal filed after
the entry of a final judgment2 ⎯ is not valid with respect to a previously filed appeal of an
interlocutory order.
Under settled appellate practice, a notice of appeal of an interlocutory order must rise or
fall based upon the Court’s authority under Code § 17.1-405(4). Rule 5A:6(a) provides that no
appeal “shall be allowed” unless a notice of appeal has been filed within 30 days “after” the
appealable order. We have recognized an exception to this rule in cases where the appellant files
the notice of appeal after the pronouncement of judgment, but before the formal entry of the
judgment order. See Saunders v. Commonwealth, 12 Va. App. 154, 155, 402 S.E.2d 708, 709
(1991). But we have never suspended the timing requirement altogether to resurrect an
otherwise unsuccessful interlocutory appeal. See generally FirsTier Mortgage Co. v. Investors
Mortgage Ins. Co., 498 U.S. 269, 276 (1991).
For these reasons, we dismiss without prejudice Record No. 2700-03-1 as outside our
interlocutory appellate jurisdiction under Code § 17.1-405(4).
Dismissed without prejudice.
2
See Smith v. Woodlawn Constr. Co., 235 Va. 424, 429, 368 S.E.2d 699, 702 (1988)
(recognizing the general rule that an “adverse interlocutory adjudication may be the subject of
appeal from the final adjudication”).
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