Davis v. County of Fairfax, Record No. 1697-08-4 (Va. App. 3/2/2010)

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DOLORES DAVIS, Appellant, v. COUNTY OF FAIRFAX, Appellee.

Record No. 1697-08-4.

Court of Appeals of Virginia, Alexandria.

March 2, 2010.

August 4, 2009.

Appeal from from the Circuit Court of Fairfax County, Nos. CL-2008-5653, Charles J. Maxfield, Judge.

Upon a Rehearing En Banc.

Phillip B. Leiser (Leiser, Leiser & Hennessy, PLLC, on briefs), for appellant.

Erin L. Sylvester, Assistant Commonwealth's Attorney (Raymond F. Morrogh, Commonwealth's Attorney; Office of the Commonwealth's Attorney for Fairfax County, on brief), for appellee.

Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty, Beales, Powell and Alston.

MEMORANDUM OPINION^*

JUDGE LARRY G. ELDER.

This appeal, which involves a civil forfeiture action brought pursuant to Code § 3.1-796.115, is before the Court of Appeals by virtue of an order of the Virginia Supreme Court providing as follows:

It appears that [the Supreme Court of Virginia] does not have jurisdiction over this case. Code § 3.1-796.115(C). Accordingly, the appellee's motion is granted and the case hereby is transferred to the Court of Appeals of Virginia pursuant to Code § 8.01-677.1.¹

Davis v. Fairfax County, No. 081825 (Va. Oct. 29, 2008) (footnote added). Based on the Supreme Court's prior determination in the instant case, we lack authority to conduct an independent review of the issue of our jurisdiction over this appeal. But see Settle v. Commonwealth, 55 Va. App. 212, 217-23, 685 S.E.2d 182, 184-87 (2009) (holding the Court of Appeals lacks jurisdiction over civil forfeiture actions under Code § 3.1-796.115 and transferring the appeal to the Supreme Court after concluding that the Supreme Court's holding in the instant case, Davis, was not binding in Settle because "the grounds upon which the Davis transfer [was] based [were] not discernable from the four corners of the order" as required by Sheets v. Castle, 263 Va. 407, 412, 559 S.E.2d 616, 619 (2002), in order for the action to "`carr[y] . . . precedential value'" in other cases).

By memorandum opinion dated August 4, 2009, a divided panel of this Court affirmed the judgment of the trial court. One of the issues before the panel was whether the County's civil forfeiture petition, following its nonsuit of Davis's de novo appeal in the circuit court, should have been refiled in the district court or the circuit court. The panel, concluding it was bound by the decision in Lewis v. Culpeper County Department of Social Services, 50 Va. App. 160, 647 S.E.2d 511 (2007), held unanimously that the petition was properly refiled in the district court. Judge Powell filed a concurring opinion to express her view that the panel decision in Lewis, while binding in the panel proceedings in the instant case, had been wrongly decided and should be overturned.

Upon appellant's petition for rehearing en banc asserting that the nonsuit issue had been wrongly decided, we stayed the mandate of the panel decision and granted rehearing en banc on the challenged issue. Upon rehearing en banc, it is ordered that the stay of the August 4, 2009 mandate is lifted. Because appellant petitioned for rehearing on only the nonsuit issue, we do not address the other issues that were before the panel, and we reinstate the panel opinion as to those issues. See Ferguson v. Commonwealth, 51 Va. App. 427, 432-33, 658 S.E.2d 692, 695 (2008) (en banc). On the nonsuit issue, we adopt the reasoning in Part I.A. of the panel decision. We also conclude Lewis was properly decided and decline appellant's invitation to overrule it. Thus, we resolve the nonsuit issue in the County's favor and affirm the judgment of the trial court.

For the reasons stated in the panel concurring opinion, Judges Powell and Alston would overrule Lewis and, therefore, they dissent.

This order shall be certified to the trial court.

On August 14, 2009 came the appellant, by counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on August 4, 2009, and grant a rehearing en banc on the issue(s) raised in the petition.

On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on August 4, 2009 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.

Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the appendix previously filed in this case.

Dolores Davis (appellant) appeals from a bench trial ruling of the circuit court concluding, pursuant to Code § 3.1-796.115,² that the twenty animals in her custody were "deprived . . . of adequate care, rendering a direct and immediate threat to their safety and health." On appeal, appellant contends that following the Commonwealth's prior nonsuit of the charges in a de novo appeal to the circuit court, the Commonwealth was required to refile those charges in circuit court rather than district court. She also contends that the circuit court erred in refusing to dismiss the refiled petition where the Commonwealth refiled it before the nonsuit order in the original suit had been entered. She contends further that a pet owner charged pursuant to Code § 3.1-796.115 is entitled to the constitutional protections of the Double Jeopardy Clause. In addition, she argues the evidence was insufficient to prove her unfitness to own pets. Finally, she contends the circuit court erred in "bifurcat[ing] the trial on the petition. . ., reserving for a later date the issue of assessment of costs against [appellant]" and allowing the Commonwealth to present evidence of its costs on that subsequent date. We hold the court committed no substantive error, and we affirm.

I.

A. NONSUIT AND TIME OF REFILING

As to the proper location for the refiling of the Code § 3.1-796.115 petition following nonsuit in the circuit court, we conclude the County properly refiled in the district court and, thus, that the circuit court acquired jurisdiction over the matter through the County's de novo appeal. As appellant acknowledges on brief, we held in Lewis v. Culpeper County Department of Social Services, 50 Va. App. 160, 167, 647 S.E.2d 511, 514 (2007), that

absent some controlling authority to the contrary, where a plaintiff who prevailed in the district court takes a nonsuit in the defendant's de novo appeal in circuit court, the combined effect of the principles applicable to nonsuits and de novo appeals is to nullify the entire suit as if it had never existed in either court.

Although appellant disagrees with our reasoning in Lewis, the holding of Lewis remains binding precedent unless overturned by the Supreme Court or this Court sitting en banc. See, e.g., Johnson v. Commonwealth, 252 Va. 425, 429-30, 478 S.E.2d 539, 541 (1996).

We also conclude the fact that the second petition was refiled on the same day as, and shortly prior to, the entry of the order nonsuiting the first petition was not fatal to the district and circuit courts' acquisition of subject matter jurisdiction over the second petition. Appellant cites no legal authority supporting such a proposition, and we are aware of none. Cf. Saunders v. Commonwealth, 12 Va. App. 154, 155, 402 S.E.2d 708, 709 (1991) (holding that a notice of appeal filed after oral pronouncement of sentence but prior to entry of the sentencing order takes effect upon entry of the final order). If the appeal of the original petition in circuit court had remained pending there long enough after the filing of the new district court petition, appellant might successfully have moved to dismiss the refiled district court petition, but the circuit court nonsuit order was entered within minutes or hours after the filing of the new petition in district court, and appellant apparently did not obtain a dismissal within that time. The brief overlap in the existence of the two petitions did not prevent the district court from acquiring subject matter jurisdiction over the refiled petition.

B. DOUBLE JEOPARDY

Double jeopardy principles protect against three distinct abuses: "(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999) (emphases added)); see Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229 (2002) (noting that the double jeopardy provisions of the Virginia and United States Constitutions are coextensive).

The Clause protects only against the imposition of multiple criminal punishments for the same offense . . . in successive proceedings.

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." [United States v.] Ward, [448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 749 (1980)]. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id. at 248-249, [100 S. Ct. at 2641, 65 L. Ed. 2d at 749], as to ...