VIRGINIA:
       In the Court of Appeals of Virginia on         Tuesday        the     2nd     day of March, 2010.


Dolores Davis,                                                                                  Appellant,

against              Record No. 1697-08-4
                     Circuit Court Nos. CL-2008-5653

County of Fairfax,                                                                              Appellee.


                                        Upon a Rehearing En Banc

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

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

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


       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


       1
         Appellant’s counsel candidly admitted at oral argument that he had been unsure which Court
had jurisdiction over this appeal when he filed his notice and that, as a result, he filed appeals in both
this Court and the Supreme Court. By order of October 9, 2008, this Court transferred the appeal filed
with us to the Supreme Court. Via entry of the October 29, 2008 order quoted in the text, the Supreme
Court transferred the appeal back to us.
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.



                                                       -2-
This order shall be certified to the trial court.

                                    A Copy,

                                            Teste:

                                                     Cynthia L. McCoy, Clerk

                                            By:

                                                     Deputy Clerk




                                               -3-
VIRGINIA:
            In the Court of Appeals of Virginia on Tuesday         the 15th day of September, 2009.


Dolores Davis,                                                                                  Appellant,

against              Record No. 1697-08-4
                     Circuit Court No. CL-2008-5653

County of Fairfax,                                                                              Appellee.


                                 Upon a Petition for Rehearing En Banc

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


        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.



                                           A Copy,
                                                   Teste:
                                                                         Cynthia L. McCoy, Clerk
                                                            original order signed by a deputy clerk of the
                                                   By:      Court of Appeals of Virginia at the direction
                                                            of the Court

                                                                         Deputy Clerk




                                                      -2-
                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Powell
Argued at Alexandria, Virginia


DOLORES DAVIS
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1697-08-4                                     JUDGE LARRY G. ELDER
                                                                   AUGUST 4, 2009
COUNTY OF FAIRFAX


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Charles J. Maxfield, Judge

                 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.


       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



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       2
         After all proceedings below had been completed, Title 3.1 was repealed, revised, and
reenacted as Title 3.2. See 2008 Va. Acts, ch. 860 (repealing Title 3.1 effective October 1,
2008); 2008 Va. Acts, ch. 510 (reenacting Code § 3.1-796.115, with amendments, as Code
§ 3.2-6569).
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


                                                  -2-
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
                                                 -3-
               248-249, [100 S. Ct. at 2641, 65 L. Ed. 2d at 749], as to “transform
               what was clearly intended as a civil remedy into a criminal
               penalty,” Rex Trailer Co. v. United States, 350 U.S. 148, 154, [76
               S. Ct. 219, 222, 100 L. Ed. 149, 153] (1956).

Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450, 458-59 (1997)

(emphasis added) (citations omitted). “In making this latter determination,” a court may

consider, inter alia, “‘whether [the penalty] comes into play only on a finding of scienter’” and

“‘whether the behavior to which it applies is already a crime.’” Id. at 99, 118 S. Ct. at 493, 139

L. Ed. 2d at 459 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S. Ct. 554, 567,

9 L. Ed. 2d 644, 661 (1963)). “‘[O]nly the clearest proof’ will suffice to override legislative

intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at

100, 118 S. Ct. at 493, 139 L. Ed. 2d at 459 (quoting Ward, 448 U.S. at 249, 100 S. Ct. at 2641,

65 L. Ed. 2d at 749).

       Appellant contends that a pet owner against whom a petition is filed pursuant to Code

§ 3.1-796.115 is entitled to the double jeopardy protections afforded by both the United States

and Virginia Constitutions. Appellant relies in part on the language of subsection (C), which

provides that “[t]he procedure for appeal and trial shall be the same as provided by law for

misdemeanors” and requires application of “the criminal standard of proof—beyond a reasonable

doubt.” She argues any ambiguity concerning whether Code § 3.1-796.115 is a criminal or civil

proceeding should be resolved in her favor. Based on the language of Code § 3.1-796.115 and

the statutory scheme of which it is a part, we reject appellant’s claim that the instant proceedings

against her under Code § 3.1-796.115 constituted double jeopardy.

       Code § 3.1-796.115 authorizes the “seiz[ure] and impound[ment of] any animal that has

been abandoned, has been cruelly treated, or is suffering from an apparent violation of this

chapter that has rendered the animal in such condition as to constitute a direct and immediate

threat to its life, safety or health.” Code § 3.1-796.115(A). That statute requires the officer
                                                -4-
effecting the seizure to petition the general district court for a hearing to determine whether the

animal has, in fact, been abandoned, cruelly treated, or provided inadequate care, and the officer

seizing the animal must provide for its care during the pendency of the hearing. Id. (A), (B). If

the owner is determined to have abandoned, cruelly treated, or provided inadequate care for the

animal prior to the seizure, the owner shall be required to pay all reasonable expenses incurred in

caring for the animal until it can be disposed of in accordance with the provisions of the code

section. Code § 3.1-796.115(F). An owner found to have abandoned, abused, or neglected a

seized animal also may be prohibited from possessing companion animals until a court finds “the

cause for the prohibition has ceased to exist.” Code § 3.1-796.115(G), (I). Code § 3.1-796.115

does not indicate that it defines a crime or proscribes a penalty therefor. Although the owner of

an animal found to be abandoned, abused, or neglected must pay for the animal’s care and the

animal may be sold, any proceeds from the sale remaining after expenses for the sale and care

have been paid are to be returned to the animal’s owner. Code § 3.1-796.115(F), (I).

       Code § 3.1-796.122, by contrast, specifically provides, inter alia, that “[a]ny person who

. . . deprives any animal of necessary food, drink, shelter or emergency veterinary treatment . . .

shall be guilty of a Class 1 misdemeanor.” Code § 3.1-796.122(A) (emphasis added). It also

specifically states that, “[i]n addition to the penalties provided in subsection A,” i.e., those

imposed for a Class 1 misdemeanor, “the court may in its discretion require any person convicted

of a violation of subsection A to attend an anger management or other appropriate treatment

program or obtain psychiatric or psychological counseling . . . [and] may impose the costs of

such a program or counseling upon the person convicted.” Code § 3.1-796.122(F) (emphases

added). A comparison of the two code sections and their respective contents makes clear that

Code § 3.1-796.115 sets out the administrative process by which an animal warden or officer

may seize an animal alleged to have been abused or neglected and provide for its care until the

                                                 -5-
propriety of the seizure is resolved, whereas Code § 3.1-796.122 defines certain abuse and

neglect of an animal as a crime and prescribes the penalty for the commission of that crime.

Thus, Code § 3.1-796.115 is civil in nature, and Code § 3.1-796.122 defines a crime.

       The language of Code § 3.1-796.115(C) providing that “[t]he procedure for appeal and

trial shall be the same as provided by law for misdemeanors” and requiring application of the

traditionally criminal standard of proof “beyond a reasonable doubt” does not support a different

result. The Virginia Supreme Court considered the meaning of almost identical language in

another statute—added by the General Assembly to the predecessor of Code § 18.2-268.4, which

addresses the procedure to be followed when a person arrested for driving while intoxicated

refuses to permit the taking of blood or breath samples pursuant to Virginia’s implied consent

law. See Commonwealth v. Rafferty, 241 Va. 319, 321-22, 402 S.E.2d 17, 18-19 (1991)

(decided under a local ordinance containing “essentially the same language” as the state refusal

statute). Rejecting the defendant’s argument that this language was intended to modify the

Court’s prior ruling that the statute provided for a civil proceeding and to make refusal a criminal

offense, the Court reasoned as follows:

               If the General Assembly intended to [make refusal a criminal
               offense], the 1977 amendment simply could have provided that an
               unreasonable refusal to submit to [a blood or breath] test is a
               misdemeanor and not an administrative and civil proceeding.
               Additionally, such an amendment would have given the right to a
               jury trial and required proof beyond a reasonable doubt, without
               the necessity of mentioning them, because both are inherent in
               criminal prosecutions.

Id. at 322, 402 S.E.2d at 19 (emphasis added).

       Similarly here, when the General Assembly added almost identical language to Code

§ 3.1-796.115(C) in 1993, see 1993 Va. Acts, ch. 119, it was on notice of the Court’s

determination that this language was not necessary in a criminal matter. See, e.g., Charles v.

Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005) (recognizing the principle that the
                                                 -6-
legislature is presumed to be aware of existing rules and case law when enacting legislation).

Thus, by adding this language to Code § 3.1-796.115, the General Assembly implicitly

recognized that the nature of the underlying proceeding in such animal seizure cases is civil

rather than criminal.

       We also conclude that the civil penalty at issue in this case is not “‘so punitive in either

purpose or effect,” [Ward, 48 U.S. at 248, 100 S. Ct. at 2641, 65 L. Ed. 2d at 749], as to

‘transform what was clearly intended as a civil remedy into a criminal penalty,’ Rex Trailer Co[,

350 U.S. at 154, 76 S. Ct. at 222, 100 L. Ed. 2d at 153].” Hudson, 522 U.S. at 99, 118 S. Ct. at

493, 139 L. Ed. 2d at 459. Considering the Mendoza-Martinez factors listed above, we note both

that Code § 3.1-796.115 does not require a finding of scienter and that the behavior at issue is

clearly proscribed as a crime under a different statute, Code § 3.1-796.122. Further, as quoted

above, although the owner of an animal found to be abandoned, abused, or neglected “shall be

required” to pay for the animal’s care, if the animal is sold, any proceeds from the sale remaining

after expenses for the sale and care have been paid are to be returned to the animal’s owner. See

Code § 3.1-796.115(F). Although the expenses appellant was ordered to pay in this case totaled

over $50,000, appellant had twenty animals in the County’s care, and she made no allegation that

the County’s actions unreasonably prolonged the period of care required. Thus, we conclude the

animal seizure statute was not so punitive in effect as to transform the civil remedy into a

criminal penalty.

       Accordingly, we conclude the instant proceeding against appellant under Code

§ 3.1-796.115—a civil statute in terms of both legislative intent and practical effect—did not

constitute double jeopardy under either the United States or Virginia Constitution.




                                                -7-
                                                   C.

            EXPERT TESTIMONY AND THE SUFFICIENCY OF THE EVIDENCE

        Appellant contends the evidence was insufficient to prove beyond a reasonable doubt that

she “rendered her animals in a condition that constituted a direct and immediate threat to their

. . . safety or health” as required to establish she violated Code § 3.1-796.115. She argues the

County could not meet this burden of proof without expert testimony. Although the trial court’s

findings under that statute are administrative and do not constitute a criminal conviction, because

the statute requires proof beyond a reasonable doubt, we examine the trial court’s findings under

the same standard of review we apply to criminal convictions. Under this standard, we view the

evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to

the prevailing party, here the County. Brown v. City of Danville, 44 Va. App. 586, 591, 606

S.E.2d 523, 526 (2004).

        Code § 3.1-796.115 required the trial court to conduct a “hearing . . . to determine

whether the animal has been abandoned, has been cruelly treated, or has not been provided

adequate care.” Code § 3.1-796.115(A). Only the third standard, the provision of “adequate

care,” is at issue here. The General Assembly has expressly defined “adequate care” as “the

responsible practice of good animal husbandry, handling, production, management, confinement,

feeding, watering, protection, shelter, . . . [and] treatment, . . . appropriate for the age, species,

condition, size and type of the animal and the provision of veterinary care when needed to

prevent suffering or impairment of health.” Code § 3.1-796.66. “Adequate shelter” is shelter

that “is safe and protects each animal from injury, . . . physical suffering, and impairment of

health,” “is properly cleaned” and “enables each animal to be clean and dry.” Id. Providing

adequate shelter requires that “carcasses, debris, food waste and excrement are removed from the

primary enclosure with sufficient frequency to minimize the animals’ contact with the

                                                  -8-
above-mentioned contaminants” and that “the primary enclosure is sanitized with sufficient

frequency to minimize odors and the hazards of disease.” Id. The statutory definitions establish

the standard of care, and under the facts of this case, expert testimony was not required to

establish the breach of that standard. Cf. Beverly Enters.-Va., Inc. v. Nichols, 247 Va. 264, 269,

441 S.E.2d 1, 4 (1994) (in nursing home negligence case, holding that whether expert testimony

is required depends upon the degree of specialized knowledge required to determine the

applicable standard and apply it to the facts).

       Further, the evidence, viewed in the light most favorable to the County, proved appellant

failed to provide the animals at issue with “adequate care” and that this failure “rendered the

animal[s] in such a condition as to constitute a direct and immediate threat to [their] . . . safety or

health.” Code § 3.1-796.115(A); see Code § 3.1-796.66 (defining “[d]irect and immediate

threat” as “any clear and imminent danger to an animal’s health, safety or life”). The County

provided testimony from Officer Cook that when he approached appellant’s residence for the

first time, he could smell the odor of urine and feces while he was still about twenty feet away

from the front door. Upon entering the house a day or two later, the officers noted the cats’ litter

boxes were “full” and that the “strong odor of urine and feces” permeated the house. The

officers “observed fecal matter on the floor and other surfaces,” and they took photographs that

documented the presence of fecal matter throughout the house. Officer Cook testified the air

quality was so bad that they “were required to wear ‘Millenium Mask[s] and ‘Tyvek’ suits” to

inspect the residence. They also photographed a wall showing several exposed wall studs

“where the wall had been chewed.” The photographs indicated that the drywall covering was

missing to a height of two to four feet and that significant portions of the studs beneath had been

gnawed away, as well.




                                                  -9-
       At least one of the animals, a “sheltie dog,” had matted feces in its fur and extremely long

nails. Two other dogs, a “Newfoundland dog” and a pit bull, had tumors or skin conditions.

Photographs of the “Newfoundland dog” showed both abrasions and an open sore. The

chinchillas were “in cages with matted litter.” One cat had a deep wound on its head where the

officers saw it come into contact with an exposed light bulb, and another cat was quarantined in a

bathroom and appellant admitted she knew the cat “was sick.” She admitted that taking the

animals to a veterinarian for care was “too difficult” and that she was merely “looking for a

veterinarian that would come to her residence.”

       This evidence was sufficient to support a finding that appellant failed to provide adequate

care for her animals. She failed to provide them with adequate shelter because “excrement” was

not “removed from the primary enclosure[, her residence,] with sufficient frequency to minimize

the animals’ contact” with it; the enclosure was not “sanitized with sufficient frequency to

minimize odors and the hazards of disease”; and the shelter provided did not “enable[] each

animal to be clean.” See Code § 3.1-796.66. The shelter also was not “safe” for the dogs, some

of which were able to reach and chew on the drywall and exposed wall studs, and it was not safe

for at least one of the cats, which came into repeated contact with an exposed light bulb,

resulting in a “deep wound” on its head. See id. Finally, the evidence also supported a finding

that appellant failed to provide some of the animals with “veterinary care when needed to

prevent suffering or impairment of health,” see id., as demonstrated by the two injured cats and

two injured dogs and appellant’s admission that the animals were not then under a veterinarian’s

care because it was “too difficult” to take them to an office for treatment. Although this

evidence may not have been sufficient, without expert testimony, to establish that appellant’s

neglect posed a “clear and imminent danger” to the animals’ lives, see id., it was more than




                                               - 10 -
sufficient to support the trial court’s finding that it endangered the health and safety of all of the

animals.

       Thus, the evidence supported the trial court’s ruling that appellant was “unfit” to own her

animals.

                                                  D.

   CONTINUANCE AND PRESENTATION OF EVIDENCE OF ANIMAL CARE COSTS

       Appellant contends the County’s failure to prove in its case-in-chief the amount of its

costs for caring for her animals was fatal to its request to recover that amount. She argues the

trial court’s allowing the County to present evidence of those costs in a subsequent proceeding

constituted an improper “bifurcation” of those issues without her consent. We conclude the trial

court did not abuse its discretion in allowing the County to present the challenged evidence.

       Appellant relies on the holding in Lee v. Mulford, 269 Va. 562, 611 S.E.2d 349 (2005),

which involved a jury trial on a contract dispute between private parties. Appellant’s case, by

contrast, involves a bench trial concerning a governmental entity’s statutory entitlement to

reimbursement upon certain factual findings. See Code § 3.1-796.115(F) (“The court shall order

the owner of any animal determined to have been . . . deprived of adequate care to pay all

reasonable expenses incurred in caring and providing for such animal [during the period of

seizure of the animal by an animal control officer].”) In the course of a single proceeding, the

court determined both that the seizure of the animals was proper and, as a result, that the County

was entitled to recover its expenses. In appellant’s case, unlike in Lee, we need not decide

whether the County was entitled to reopen its case and to present evidence of its expenses on a

later date. Because the trial court in appellant’s case ruled that the County would be permitted to

reopen, we must decide only whether this ruling was an abuse of discretion. We hold that it was

not.

                                                - 11 -
       Under settled principles, a “trial court ha[s] broad discretion to control the order of

evidence before it,” and it “[does] not abuse its discretion in permitting the Commonwealth to

reopen its case to present additional evidence” after the court has expressed doubt about the

sufficiency of the evidence before it. Lebedun v. Commonwealth, 27 Va. App. 697, 715, 501

S.E.2d 427, 436 (1998); see Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 440

(1998) (recognizing the inherent authority of a court, in a divorce case, to reopen the record to

take additional evidence). “Although the trial judge is a neutral and impartial arbiter and should

not abandon that role by becoming an advocate, the trial judge is not required to sit idly and

observe a miscarriage of justice occur because one party inadvertently overlooks establishing a

routine element of proof.” Lebedun, 27 Va. App. at 716, 501 S.E.2d at 436. A decision whether

to grant a continuance also rests in the sound discretion of the trial court. See, e.g., Novak v.

Commonwealth, 20 Va. App. 373, 391-92, 457 S.E.2d 402, 410-11 (1995).

       Here, the County requested an award of expenses for the care of the animals after the

parties had concluded their evidence and the court had found appellant deprived them of

adequate care. The trial court did not abuse its discretion in holding per the statute, before that

hearing had concluded, that appellant would be responsible for those expenses and allowing the

County to present evidence of the amount of those expenses at a second hearing held one week

later. These rulings amounted to a variance in the order of proof and a brief continuance, neither

of which constituted an abuse of the trial court’s discretion on the facts of this case. Cf. Code

§ 3.1-796.115(C) (“The procedure for appeal and trial shall be the same as provided by law for

misdemeanors.”); Code § 19.2-295.1 (providing that “[i]n cases of trial by jury, upon a finding

that the defendant is guilty of . . . a Class 1 misdemeanor, or upon a finding in the trial de novo

of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor, a




                                                - 12 -
separate proceeding limited to the ascertainment of punishment shall be held . . . before the same

jury” (emphasis added)).

                                                   II.

        We uphold the circuit court’s ruling that the County properly refiled its petition in district

court and that the timing of the refiling of that petition was not fatal to the district court’s

acquisition of jurisdiction. We also conclude that because Code § 3.1-796.115 is administrative

in nature and did not result in the imposition of penalties so punitive in purpose or effect as to

constitute a criminal punishment, appellant was not entitled to constitutional protections against

double jeopardy. We hold further that the evidence was sufficient to support the seizure of her

animals and the subsequent finding that she was unfit to own pets. Finally, we conclude the trial

court did not err in holding she was responsible for the County’s costs incurred in caring for the

animals and in allowing the County to present evidence of those costs one week after the finding

of her unfitness. Thus, we affirm.

                                                                                              Affirmed.




                                                 - 13 -
Powell, J., concurring.

        I concur with the majority opinion. I write separately to address the issue raised in the

first assignment of error regarding the effect of a nonsuit.

        Citing Lewis v. Culpeper County Department of Social Services, 50 Va. App. 160, 647

S.E.2d 511 (2007), the majority holds that following a nonsuit in the circuit court, the County

properly refiled its new suit in the district court. I believe Lewis was wrongly decided.

        Code § 8.01-380 provides:

                After a nonsuit no new proceeding on the same cause of action or
                against the same party shall be had in any other court than that in
                which the nonsuit was taken, unless that court is without
                jurisdiction, or not a proper venue, or other good cause is shown
                for proceeding in another court . . . .

        The majority in Lewis concluded that the interplay of Virginia’s system of de novo

appeals and nonsuits effectively “nullif[ies] the entire suit [on appeal] as if it never existed in

either court.” Lewis, 50 Va. App. at 167, 647 S.E.2d at 514. Thus, in circumstances where the

circuit court’s jurisdiction is derivative, a refiled suit must return to the court that had original

jurisdiction. The majority relied on Thomas Gemmell, Inc. v. Svea Fire & Life Insurance Co.,

166 Va. 95, 184 S.E. 457 (1936), for this proposition. For two reasons, I believe that the Lewis

panel misconstrued Gemmell.

        First, the Lewis panel’s reading of the statute is strained. “The applicable statutory

language quoted in Code § 8.01-380(A) is clear and unambiguous and, therefore, we apply its

plain meaning.” Conner v. Rose, 252 Va. 57, 58, 471 S.E.2d 478, 479 (1996). Code

§ 8.01-380(A) clearly states that “no new proceeding on the same cause of action or against the

same party shall be had in any other court than that in which the nonsuit was taken.” (Emphasis

added). Thus, when a nonsuit is taken in circuit court, the statute by its terms requires that the

case be refiled in circuit court. The only caveat is if the circuit court is without jurisdiction;

                                                 - 14 -
however, nothing in the statute indicates that the circuit court must have original jurisdiction.

Therefore, once the circuit court acquired jurisdiction when the case was appealed, the circuit

court retains that jurisdiction absent some procedural deprivation, such as failure to notify the

non-appealing party.

       Second, Gemmell clearly established that the circuit court does retain jurisdiction. The

Supreme Court specifically stated that,

               “By perfecting the appeal from the justice’s court the case was
               entirely removed from that court, and only the superior court had
               thereafter jurisdiction in the matter.”

Gemmell, 166 Va. at 100, 184 S.E. at 459 (quoting Bullard v. McArdle, 33 P. 193, 194 (Cal.

1893)) (emphasis added).

       By this language, the Supreme Court has unequivocally ruled that once the appeal is

perfected, thereafter, only the superior court has jurisdiction. Therefore, the circuit court retains

jurisdiction even after the nonsuit is filed and any subsequent filings must be in that court.

       However, I recognize that Lewis is binding precedent. Therefore, I concur.




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