                             COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Felton
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF PROFESSIONAL AND
 OCCUPATIONAL REGULATION,
 REAL ESTATE BOARD
                                                                    OPINION BY
v.     Record No. 1868-04-1                                  JUDGE JAMES W. BENTON, JR.
                                                                     JUNE 7, 2005
JAMIE W. LANCASTER AND
 CHRISTINA L. ROGERS, F/K/A
 CHRISTINA L. LANCASTER


             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                              Frederick B. Lowe, Judge

               Eric A. Gregory, Assistant Attorney General (Jerry W. Kilgore,
               Attorney General; M. Seth Ginther, Senior Assistant Attorney
               General, on briefs), for appellant.

               James A. Evans; Kevin E. Martingayle (Dinsmore, Evans &
               Bryant; Stallings & Bischoff, P.C., on brief), for
               appellees.


       The Department of Professional Regulation’s Real Estate Board imposed sanctions on

real estate agents Jamie W. Lancaster and Christina L. Lancaster for three violations that

occurred during their representations of Alice Mann in real estate transactions. Following the

Lancasters’ appeal to the circuit court, the trial judge affirmed two of the sanctions and remanded

the third sanction (Count I) to the Board for a further hearing. The Board contends the trial

judge erred in remanding the proceeding for a further hearing. The Lancasters argue that the trial

judge had the authority to do so, but they contend the trial judge erred by denying their motion

for a judgment by default. For the reasons that follow, we hold that the trial judge’s order did

not address the merits of the third sanction and necessarily contemplates additional proceedings
in the Board, that the order is not a “final decision” within the meaning of Code § 17.1-405, and

that we lack jurisdiction to consider the appeal.

                                                    I.

       Jamie W. Lancaster and Christina L. Lancaster are licensed real estate agents, whose

profession is governed by the Department of Professional Regulation’s Real Estate Board. Code

§ 54.1-2100 to § 54.1-2111. Between June 1999 through August 2000, the Lancasters

represented Alice Mann, an elderly woman, in various capacities in connection with properties in

the City of Chesapeake. Christina Lancaster was the listing and sales agent in some of the five

separate property transactions. Jamie Lancaster was the listing agent on at least one of the

transactions, and he was paid to make repairs at one of the properties. Mann lost $40,000 as a

result of these transactions.

       The Lancasters’ dealings with Mann resulted in a civil action initiated by Mann in which

she alleged the Lancasters “defrauded, stole, and converted” large sums of money from her. A

jury found that “Jamie and Christina Lancaster, acting together, intentionally committed fraud

upon . . . Mann” and caused Mann to suffer losses. The jury awarded Mann $189,000.

       Following the judgment in the civil action, Mann’s son filed complaints with the Board

on behalf of Mann. Based on Mann’s complaints, the Board conducted an investigation of the

real estate transactions and determined the evidence warranted an informal fact finding

conference. At the conference, the Lancasters were represented by attorneys and had the

opportunity to present evidence, respond to evidence, and to challenge the allegations in the

complaints. At the conclusion of the informal conference, the presiding Board members drafted

summary reports of the conference. The two reports, one concerning Christina Lancaster and the

other concerning Jamie Lancaster, are virtually identical. They contain a “summation” of

relevant facts, conclusions, and recommendations concerning four separate counts at issue. The

                                                -2-
reports found that the Lancasters “failed to exercise ordinary care to safeguard the interest of

[the] client, Mann, who had special needs based on her elderness,” in violation of Regulation 18

VAC 135-20-260(8) (Count I); that the allegation of fraud “be closed with a finding of no

violation,” noting that the civil fraud judgment concerned gifts unrelated to the real estate

transactions (Count II); that the Lancasters failed to properly account for money and property

received in connection with the real estate transactions, in violation of Code

§ 54.1-2132(A)(2)(d) (Count III); and that the Lancasters engaged in “improper and dishonest

conduct” in violation of 18 VAC 135-20-260(9) (Count IV). The reports, which were presented

to the Board, recommended imposing the following sanctions for each of the Lancasters: $2,500

penalty and a one-year suspension of their licenses for Count I, $500 penalty for Count III, and

$500 penalty for Count IV.

       The record contains minutes of the Board meeting at which the Board considered the

reports of the informal fact finding conference. The minutes reflect that the Lancasters and their

attorneys were present and addressed the Board. The Board voted to accept the reports’ findings

that the Lancasters had committed the violations specified in Counts I, III, and IV and to accept

the recommended sanctions. The Board also voted to accept the finding that the Lancasters did

not commit the allegations that were dismissed in Count II.

       The Lancasters appealed the Board’s decision to the Circuit Court for the City of Virginia

Beach pursuant to the Administrative Process Act (Code §§ 2.2-4000 to 2.2-4033). Following

the filing of pleadings in the circuit court, the Lancasters filed a motion for default judgment,

alleging that the Board failed to timely file responsive pleadings. The trial judge denied the

motion, and the matter proceeded on the docket. At a later hearing in the circuit court, the

parties argued the merits of the appeal. In part, Jamie Lancaster’s attorney argued that Jamie

Lancaster was only involved in one of the real estate transactions. Christina Lancaster’s attorney

                                                -3-
argued that the record contained “factual errors concerning who handled what transactions” and

that the Board treated both the same because Mann was elderly.

       At the conclusion of the hearing, the judge made the following findings:

              [T]here are two issues before the Court here, one having to do with
              whether or not there is substantial evidence to support the
              [B]oard’s findings, the other is the error of law, due process
              argument. And, as I indicated before, [it’s] not a de novo issue as
              to whether or not there is sufficient or substantial evidence, and the
              Court is not allowed to substitute its judgment for that of the
              [B]oard.

                 I am, however, convinced that it’s a situation in which, quite
              frankly, there ought to have been more opportunity before the full
              [B]oard to have given these folks a chance to present their side of
              the case. . . . I am inclined to remand it back to the [B]oard for a
              full hearing only as to count one and specifically on the issue of
              the determination of failure to use ordinary care. And I don’t think
              that it would take forever to come to . . . that issue specifically
              before the entire [B]oard. I don’t think that the other counts really
              amount to a whole lot as far as either side is concerned.

                 But the Court would be prepared to do that, unless counsel for
              the [Lancasters] tell me you don’t want to do that, you would
              rather have a ruling one way or the other and take it up. But I
              think that’s the appropriate thing to do is to remand it.

                         *      *       *       *       *       *      *

                 And specifically, though, as to that one count and to that one
              issue, because I think . . . everybody has agreed that that’s the
              issue, whether or not there was a failure to use ordinary care. And
              that’s the standard, that’s the issue, and that is what I think needs
              to be explored a little bit more fully and more in depth by the
              [B]oard.

       The Board’s attorney inquired whether the judge was requiring the Board to give “a full

hearing,” and he informed the judge that the Board “normally gives these regulants five

minutes.” The judge responded as follows:

              [T]hey can decide whether they want to do that or not. I’m not
              going to try to make their rules for them. They can decide whether
              they want to do five minutes or more than five minutes, or whether
              they’re going to stick to the five minutes. And then I would
              imagine, depending on what the outcome at that level is, it will be
                                                -4-
               back up here and then we will be arguing about whether five
               minutes is enough. So there you are. So that’s the way it will have
               to work.

       After exploring the issue whether the suspension of the Lancasters’ licenses would be

stayed pending the remand, the Board’s attorney reminded the judge that the Board could impose

higher penalties on the Lancasters during the second hearing. The judge responded, “That’s

absolutely correct” and indicated that was the reason he “specifically asked [the attorney]

whether or not he was making that request and he said that he was.”

       A discussion then ensued about whether the circuit court would retain jurisdiction over

the case:

               [Lancaster’s attorney]: So the Court maintains jurisdiction over
               this matter, remands it, and then -- because there’s going to be this
               order of suspension, so obviously, as long as that’s going on, the
               Court still has jurisdiction, but you’re just sending it back to
               Richmond for them to figure out that part?

               [Judge]: It’s a Court suspension.

               [Lancaster’s attorney]: Yes, sir, count one, but you maintain
               jurisdiction. This is not a terminated proceeding. It’s being sent
               back to Richmond.

               [Judge]: That’s correct

       The trial judge later entered a “final order” tendered by the parties. The order decrees

that “Counts 3 and 4 of the . . . Board’s Final Opinion[s] . . . are affirmed,” and the order further

provides as follows:

                   For the reasons stated on the record . . . Count 1 of the Real
               Estate Board’s Final Opinion[s] are set aside and remanded to the
               Board for a formal hearing, specifically, to address the issue of the
               [Lancasters’] failure to exercise ordinary care in respect to the
               client’s interests in the transactions at issue in these cases, and in
               order to allow [the Lancasters] further opportunity to address the
               Board regarding that issue and in response to the findings and
               recommendations of the respective investigations and informal
               Fact Finding Conferences related thereto.


                                                 -5-
In addition, the order decrees that “this matter is hereby dismissed and is to be removed from the

Court’s docket.”

                                                 II.

       The Board contends that the trial judge erred in remanding the proceedings to the Board,

arguing that the Lancasters had a full opportunity during the Board’s proceedings to address the

issue whether they failed to exercise ordinary care to safeguard the interests of Mann. Thus, the

Board argues that we should reverse the judge’s remand order and “affirm the [Board’s] Final

Opinion and Orders.” The Lancasters respond that the trial judge did not err in remanding the

case because the record contains insufficient evidence of their failure to exercise ordinary care

and because the record established “a Board ‘review’ that lacked any attention to detail.” In

addition, the Lancasters present the additional question on appeal whether the trial judge erred in

refusing to grant their motion for a default judgment.

       Upon our review of the record and the order from which this appeal arises, we hold that

the order remanding the case to the Board for further consideration is interlocutory and, despite

its title, is not a “final decision” with the meaning of Code § 17.1-405.

       “The Court of Appeals of Virginia is a court of limited jurisdiction.” Canova Electric

Contracting v. LMI Ins., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996). As a court of

limited jurisdiction, “[w]e have no jurisdiction over appeals except that granted us by statute.”

Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991). In this case, involving

an appeal from the circuit court’s review of an agency’s action, our jurisdiction is defined by

Code § 17.1-405. In pertinent part, this statute confers jurisdiction in this Court over the

following:

               (1) Any final decision of a circuit court on appeal from (i) a
               decision of an administrative agency . . . or (4) [a]ny interlocutory
               decree or order entered in any of the cases listed in this section (i)

                                                -6-
                granting, dissolving, or denying an injunction or (ii) adjudicating
                the principles of a cause.

Id.

        “A final order is one that disposes of the whole subject, gives all the relief contemplated,

and leaves nothing to be done in the cause save to superintend ministerially compliance with the

order.” Alexander v. Commonwealth, 19 Va. App. 538, 540, 452 S.E.2d 370, 371 (1995). If an

order leaves any “vital questions unsettled” in the matter, it may not be considered final. Allen

v. Parkey, 154 Va. 739, 748, 149 S.E. 615, 619 (1930). In short, a “final order” is an order “that

is dispositive of the entire case.” Black’s Law Dictionary 1130 (8th ed. 2004).

        Despite its title as the “Final Order,” the order entered in this proceeding was not a “final

decision” within the meaning of the statute as to the issues appealed. The order expressly

remands the proceedings to the Board for reconsideration of the matter of “failure to exercise

ordinary care,” which underlies the Board’s rulings and sanctions as to Count I. The trial judge

made no determination of the merits of that issue and made no ruling concerning the sanctions of

Count I. In this respect, the circumstances in this case concerning Count I are as we explained in

Hoyle v. Virginia Employment Commission, 24 Va. App. 533, 484 S.E.2d 132 (1997): “When

the trial judge remanded the case to the commission, the trial judge ‘did not resolve any factual

or legal issues concerning the merits of the case.’” Id. at 537, 484 S.E.2d at 133-34 (quoting

Canova Elec. Contracting Inc., 22 Va. App. at 600, 471 S.E.2d at 830)). Just as in Hoyle, the

judge’s remand order in this case “was an interlocutory ruling that required further action” from

the agency. 24 Va. App. at 537, 484 S.E.2d at 134. As we have often noted, “‘[t]he mere

possibility that [the remand order] . . . may affect the final decision in the trial does not

necessitate an immediate appeal.’” Id. (quoting Pinkard v. Pinkard, 12 Va. App. 848, 853, 407

S.E.2d 339, 342 (1991)).



                                                 -7-
       Federal courts, which are also courts of limited jurisdiction, apply a similar rule.

               The Supreme Court has noted “[t]he strong presumption . . . that
               judicial review [of agency decisions] will be available only when
               agency action becomes final. Because federal courts are
               constitutionally courts of limited jurisdiction, the statute must
               overcome this presumption by providing an explicit basis for
               appealing a non-dispositive order. Nothing in [the federal code]
               directs us to entertain appeals of non-final orders.”

Carolina Power & Light Co. v. United States, 43 F.3d 912, 914 (4th Cir. 1995) (quoting Bell v.

New Jersey, 461 U.S. 773, 778 (1983)).

       The decision in Harper v. Bowen, 854 F.2d 678 (4th Cir. 1988), provides a helpful

analysis as to why a remand to an agency is generally not an appealable issue. In that case, the

Department of Health and Human Services denied Harper’s social security disability claim.

When Harper challenged that ruling in federal district court, the judge remanded the case to the

Department for further proceedings because of the Department’s failure to properly allocate the

burden of proof. Id. at 679. The Department appealed that remand order to the Court of Appeals

for the Fourth Circuit. In considering whether it had jurisdiction to hear the appeal, the Court

concluded that the remand order was not a “final decision” within the meaning of 28 U.S.C.

§ 1291. The Court reasoned that the jurisdiction for appellate courts “‘generally depends on the

existence of a decision by the [trial judge] that ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.’” Harper, 854 F.2d at 680 (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). Most importantly, the remand gave

the Department the opportunity to address the trial judge’s concerns, and, “[b]y barring

piecemeal appellate review, this rule preserves the [trial] court’s independence and protects

parties from the harassment of separate appeals of individual rulings.” Harper, 854 F.2d at 680.1


       1
         The United States Supreme Court has recognized certain statutory exceptions to the
general rule. For example, in Sullivan v. Finkelstein, 496 U.S. 617, 619 (1990), it interpreted 42
U.S.C. § 405(g) as giving a right to appeal from a remand order in certain circumstances.
                                               -8-
       In the Lancasters’ case, the remand order was not appealable under Code § 17.1-405 and

was within the trial judge’s authority. The trial judge had the statutory power to remand the case

for additional findings regarding whether the Lancasters exercised ordinary care. Code

§ 2.2-4029 provides: “Where a regulation or case decision is found by the court not to be in

accordance with law under § 2.2-4027, the court shall suspend or set it aside and remand the

matter to the agency for further proceedings, if any, as the court may permit or direct in

accordance with law.” Addressing a somewhat similar issue in a workers’ compensation appeal,

we held as follows:

               “[The Act] does not expressly empower a reviewing court to
               remand a cause to the Commission. But, absent a specific mandate
               to the contrary, a statutory grant of appellate jurisdiction
               necessarily implies such a power. ‘It is familiar appellate practice
               to remand causes for further proceedings without deciding the
               merits, where justice demands that course in order that some defect
               in the record may be supplied. Such a remand may be made to
               permit further evidence to be taken or additional findings to be
               made upon essential points.’”

Hoyle, 24 Va. App. at 537-38, 484 S.E.2d at 134 (quoting Jones v. Willard, 224 Va. 602, 606-07,

299 S.E.2d 504, 507-08 (1983)).

       At this point in the proceedings, the trial judge has not decided the merits of Count I. The

judge’s remand order contemplates that the Board will determine whether its procedures in this

case were adequate to give the Lancasters the opportunity to be heard on the issue of ordinary

care. As the trial judge acknowledged, the Board could decide that its procedures were

sufficient, or it could decide to conduct a more thorough hearing. In any event, the merits of the



Finkelstein, 496 U.S. at 625-29. Applying those statutory provisions, the Court held that “the
Secretary of Health and Human Services may immediately appeal a district court order
effectively declaring invalid regulations that limit the kinds of inquiries that must be made to
determine whether a person is entitled to disability insurance benefits and remanding a claim for
benefits to the Secretary for consideration without those restrictions.” Id. at 619. The Court
noted, however, that the issue in Finkelstein was “not the broad question whether remands to
administrative agencies are always immediately appealable.” 496 U.S. at 623.
                                                 -9-
issues concerning Count I of the Board’s order remain undecided. Indeed, as the trial judge

reminded the parties, only if he ruled on the merits of the case would that decision be appealable

to this Court. Neither party objected when the judge said he “would be prepared to [rule on the

case, and not remand], unless counsel for the [Lancasters] tell me you don’t want to do that, you

would rather have a ruling one way or the other and take it up.”

        The trial judge has yet to render his decision regarding Count I. Until the Board makes a

decision on remand, it is speculative whether there will be an appeal. Simply put, there is no

“final decision” within the meaning of Code § 17.1-405 that we can affirm or reverse.2 Until the

decision becomes final, there is simply no possible relief to grant either party.

        As to the Lancasters’ designation of the default judgment ruling as an additional question

on appeal, see Rule 5A:21(b), we hold that it is also an interlocutory appeal within the meaning

of Code § 17.1-405. For purposes of this appeal, we analogize the procedural posture to be

similar to a cross-appeal. As the Court held in W. M. Schlosser Co., Inc. v. Fairfax County, 975

F.2d 1075, 1077 (4th Cir. 1992), because “there has been no final order [in the primary appeal]

from which to cross appeal, the [cross] appeal . . . must also be dismissed.” Accord Polk v.

Montgomery County, 782 F.2d 1196, 1200 (4th Cir. 1986) (dismissing a cross-appeal for lack of

appellate jurisdiction over the primary appeal). Procedurally, the additional question the

Lancasters raise is essentially “a cross-appeal . . . [, has] not . . . separately arisen[, and] . . . will

be dismissed without prejudice.” W. M. Schlosser Co., 975 F.2d at 1079.

        For these reasons, we hold that the appeal is interlocutory, and we dismiss the Board’s

appeal and the additional question raised by the Lancasters.

                                                                   Dismissed without prejudice.



        2
         Neither party contends, nor do we believe, that this decision was the kind of appealable
interlocutory decision within the meaning of Code § 17.1-405.
                                              - 10 -
