                  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.




                                  - 2 -
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



                                   - 3 -
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.



                                - 4 -
     "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



                                - 5 -
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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