Nydia Blake and Rebecca Montalvo v. Marina Tamrit Couk

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges AtLee and Friedman
UNPUBLISHED
Argued at Fredericksburg, Virginia
NYDIA BLAKE AND
REBECCA MONTALVO
MEMORANDUM OPINION* BY
v. Record No. 0612-22-4 JUDGE RICHARD Y. ATLEE, JR.
APRIL 25, 2023
MARINA TAMARIT COUK
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Angela L. Horan, Judge
J. Scott Krein (Krein Law Firm, on brief), for appellants.
No brief or argument for appellee.1
Appellants Nydia Blake and Rebecca Montalvo argue the circuit court erred in granting
Marina Tamarit Couk’s motion to vacate the circuit court’s February 11, 2022 order and
remanding the case to the General District Court of Prince William County (“GDC”) with
instructions that the GDC order Couk to post an appeal bond as required by Code § 16.1-107(A).
For the following reasons, we disagree with appellants’ contentions and affirm.
I. BACKGROUND
The pertinent facts on appeal are not in dispute. In December 2021, appellants filed a
warrant in detinue in the GDC over two dogs whom they alleged Couk was unlawfully refusing
to return to Montalvo, their rightful owner.2 The GDC ruled in favor of Montalvo and Blake,
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Appellee’s counsel of record is listed as August McCarthy.
2
Although the underlying facts of the dispute do not affect our analysis on appeal, we
nonetheless provide a brief synopsis for context. Montalvo and Couk were initially on good
awarding them the two dogs or monetary compensation of $1,000 per dog. Couk noted her
appeal to the circuit court and paid a $126 writ tax. 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).3 The circuit court
dismissed the appeal for lack of jurisdiction because no bond had been filed.
Couk, at first pro se, timely filed a motion for the circuit court to vacate judgment or
grant a rehearing on the circuit court’s dismissal of the appeal. Later, through counsel, she filed
motions to reconsider, vacate, and remand the case to the GDC. She argued that the GDC
erroneously failed to require a bond and she did not discover this failure until the case was before
the circuit court, despite her efforts to ascertain the amount of, and her willingness to pay, bond
in order to perfect her appeal. Couk argued that the circuit court had erred in dismissing the
appeal, and instead it should have remanded the case to the GDC so it could order an appeal
bond and thus “correct the problem the GDC created when it failed to require an appeal bond,”
terms. Blake is Montalvo’s mother, and they live together. Montalvo adopted the first dog while
traveling in Spain, and Couk later helped obtain a second dog of the same breed. Montalvo and
Blake, the only parties to file a brief with this Court, contend that Couk got this second dog on
Montalvo’s behalf and that Montalvo was the sole owner of both dogs. At some point, after
Montalvo had been deployed abroad, Couk was in possession of both dogs and refused to return
either of them, prompting appellants to file suit.
3
“No appeal shall be allowed unless and until the party applying for the same or someone
for him shall give bond . . . .” Code § 16.1-107(A).
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pursuant to the remedy provided in Code § 16.1-109(B)(ii).4 The circuit court stayed the
dismissal of the appeal and scheduled a hearing on the motions. Both parties filed additional
briefing, and, following argument, the circuit court vacated its dismissal order and further
ordered that the case be remanded to the GDC for it to set and order bond. Blake and Montalvo
now appeal the circuit court’s remand order.
II. ANALYSIS
Appellants argue that the circuit court erred in (1) “exercising jurisdiction of these
proceedings where appellee failed to post the bond,” (2) “holding appellee’s jurisdictional
obligation to post the appeal bond required by . . . Code § 16.1-107 is dependent on the [GDC]
setting a bond amount,” (3) holding that the GDC was required to set bond, and (4) ruling that
this failure to set bond was learned of only after the case had been appealed to the circuit court.
A. Standards of Review
Appellants’ assigned errors primarily concern statutory construction, which are questions
of law, reviewed de novo. Parker v. Warren, 273 Va. 20, 23 (2007). To the extent their final
assigned error, whether the failure to order bond was discovered after the matter was sent to the
circuit court, involves issues of fact, we ask if “it appears from the evidence that such judgment
4
Code § 16.1-109(B) states, in pertinent part:
When a bond or other security is required by law to be posted or
given in connection with an appeal or removal from a district
court, and . . . (ii) the district court erroneously failed to require the
bond or other security, and . . . 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 or give the required security within a period
of time not longer than the initial period of time for posting the
bond or giving the security for removal.
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is plainly wrong or without evidence to support it.” Atrium Unit Owners Ass’n v. King, 266 Va.
288, 293 (2003) (quoting Code § 8.01-680).
B. Requirement to Order and Post Bond and Application of Code § 16.1-109(B)
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.” Id. 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.” Forte v.
Commonwealth, Dep’t of Soc. Servs., Div. of Child Support Enf’t, ex rel. Newsome, 65 Va. App.
1, 8-9 (2015) (describing the effect of an analogous provision, Code § 16.1-296, which concerns
appeals from juvenile and domestic relations district court cases). This requirement serves an
important purpose: “[a]n appeal bond provides assurances that any judgment that may be
rendered on appeal, if perfected, will be satisfied.” Mahoney v. Mahoney, 34 Va. App. 63, 67
(2000) (en banc).
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
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GDC might “erroneously fail[] to require the bond or other security.” Code § 16.1-109(B)(ii).5
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.” Id. This is
exactly what took place, which appellants nonetheless argue was error.
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.” Sharma, 46 Va. App. at 594. We held that it provided no remedy
either when the lower court7 fails to order bond or when it erroneously sets it at $0. Id. 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.” Id. at 594-95.
Therefore, “the circuit court . . . has no jurisdiction to implement Code § 16.1-109 if no appeal
bond was posted,” id. at 594, 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,” id. at 590.
5
Appellants’ argument that “[n]othing prevented Couk from giving bond,” despite no
bond being set or ordered, does not bear out practically. Even though “an amount sufficient to
satisfy the judgment of the court in which it was rendered,” Code § 16.1-107(A), is fairly
straightforward here, since the GDC set the value of the dogs at $2,000, Couk would not have
been able to remit that amount to the GDC, because, as Couk noted in her briefing below, a
clerk’s office does not accept an appeal bond where the judge did not order it.
6
At this point, the statute only allowed a “court to which the appeal is taken” to “require
the appellant to give new or additional security.” Code § 16.1-109(A).
7
In Sharma, this Court dealt with an analogous provision, requiring the payment of bond
in appeals from juvenile and domestic relations district court cases, Code § 16.1-296, versus civil
appeals from a GDC, Code § 16.1-107.
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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.” Code § 16.1-109(B). 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. See Wilson v. Commonwealth, 66 Va. App. 9, 15 (2016) (“This Court will ‘interpret
statutory language, whenever possible, to avoid rendering other statutory language superfluous.’”
(quoting Epps v. Commonwealth, 59 Va. App. 71, 80 (2011))). 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).8 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.
C. When the Failure to Order Bond is Discovered
Appellants’ final assignment of error argues that “[t]he circuit court erred in holding the
general district court’s purported failure was ‘discovered after the case [had] been sent to the
circuit court’” (second alteration in original) (quoting Code § 16.1-109).
Although Couk was necessarily aware that no bond had been ordered prior to the case
being appealed to the circuit court, as she inquired about that bond and whether she should file a
8
Furthermore, unlike in prior cases, we have evidence Couk not only inquired as to the
amount of bond and when the GDC would order it, but she even asked if she needed to file a
motion to request that the GDC do so. A deputy clerk with the GDC said she did not. This is
distinct from prior cases, where no effort was made to inquire about or pay any bond, and thus
“there [wa]s a total failure to comply with the statute.” Sharma, 46 Va. App. at 594.
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motion for it in the GDC, there is nothing to suggest that she was aware that this constituted an
error or failure under Code § 16.1-107(A) until after the case was sent to the circuit court (and
appellants filed to dismiss the appeal on those grounds). And the provisions of Code
§ 16.1-109(B) make little sense if one cares only about when a party realizes that the GDC did
not set or order bond—instead, what matters is when it is identified as an “error or failure” that
might be ameliorated.
Using appellants’ logic, Couk’s remedy would lie earlier in Code § 16.1-109(B)(ii),
which provides that if
the district court erroneously failed to require the bond or other
security, and the defect or failure is discovered prior to sending the
case to the circuit court, the district court shall order that the
appellant . . . cure such defect or failure within a period not longer
than the initial period of time for posting the bond or giving the
security.
Code § 16.1-109(B)(ii) (emphasis added). The statue continues, however:
If the error or failure [to set and order bond] 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 . . . to cure the defect or post the required bond or give
the required security within a period of time not longer than the
initial period of time for posting the bond or giving the security for
removal.
Id. (emphasis added).
The distinction between the remedies provided, depending upon when the failure to order
bond is discovered, does not shift any burden to Couk. It essentially provides the same
remedy—the GDC setting and ordering bond—with the former being handled while the case is
still in the GDC, and the other being handled by the circuit court which needs to send it back to
the GDC, depending on which court has control over the case at the time the error is brought to
light.
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Here, there is no question that when the error was discovered, the GDC had already
certified the case to the circuit court, and the GDC no longer had jurisdiction. Therefore, the
circuit court acted in accordance with the pertinent statutory remedy for when the failure to order
bond is discovered after being certified to the circuit court. As such, we see no merit in
appellants’ argument and find no error in the circuit court following the procedures in Code
§ 16.1-109(B)(ii).
III. CONCLUSION
For the foregoing reasons, we find no error in the circuit court remanding the matter to
the GDC for it to set and order bond in compliance with Code § 16.1-107(A), and we affirm.
Affirmed.
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