Cnty. of Albemarle v. Camirand

• Decision Date: 28 February 2013
• Docket Number: Record No. 120711.
• Citation: 738 S.E.2d 904
• Court: Virginia Supreme Court
• Parties: COUNTY OF ALBEMARLE, et al. v. Cindy CAMIRAND, et al.

738 S.E.2d 904

COUNTY OF ALBEMARLE, et al.

v.Cindy CAMIRAND, et al.

Record No. 120711.

Supreme Court of Virginia.

Feb. 28, 2013.

Jim H. Guynn, Jr., Salem (Guynn, Memmer & Dillon, on briefs), for appellants.

Edward B. Lowry (David W. Thomas; Charlottesville, MichieHamlett, on brief), for appellees.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

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 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.

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 Enterprise, 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 (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 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...