                   COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF ENVIRONMENTAL
 QUALITY, ET AL.
                                         MEMORANDUM OPINION * BY
v.   Record No. 0769-99-2                JUDGE NELSON T. OVERTON
                                              MARCH 28, 2000
RESIDENTS INVOLVED IN SAVING
 THE ENVIRONMENT, INC., ET AL.


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Melvin R. Hughes, Judge

          John R. Butcher, Assistant Attorney General
          (Mark L. Earley, Attorney General; Deborah
          Love Feild, Assistant Attorney General, on
          briefs), for appellants.

          Clarence M. Dunnaville, Jr.; David S. Bailey
          (Henry L. Marsh, III; Hill, Tucker & Marsh;
          David S. Bailey, L.L.C., on brief), for
          appellees.


     The Commonwealth of Virginia, Department of Environmental

Quality ("DEQ") appeals an award of $185,000 in attorneys' fees

and costs to Residents Involved in Saving the Environment, Inc.,

et al., ("Residents") 1 pursuant to Code § 9-6.14:21.   The circuit

court awarded Residents attorneys' fees and costs for legal


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Residents Involved in Saving the Environment, Inc. is an
organization of persons residing and/or owning property near a
landfill site in King and Queen County. Appellees include named
individuals, a church and a farming corporation.
services rendered in connection with Residents' challenge to DEQ's

issuance of a solid waste facility permit to Browning-Ferris

Industries of South Atlantic, Inc. ("BFI") to construct and

operate a landfill in King and Queen County.   The award included

Residents' attorneys' fees and costs incurred for proceedings held

in the circuit court and in the appellate courts in the matter.

     We hold that the circuit court lacked jurisdiction to award

Residents any attorneys' fees and costs in this matter.

Accordingly, we vacate the award.

                               FACTS

     On June 2, 1993, DEQ issued a solid waste facility permit to

BFI to construct and operate a landfill in King and Queen County.

Residents appealed the decision to issue the permit to the circuit

court.   On May 30, 1995, the circuit court entered an order

affirming the decision by DEQ to issue the permit.   The May 30,

1995 order does not address attorneys' fees or reserve

jurisdiction to the circuit court to award attorneys' fees at a

later time.

     Residents appealed the circuit court decision to this Court.

We reversed the circuit court's decision in Residents Involved in

Saving the Environment, Inc. v. Commonwealth, 22 Va. App. 532, 471

S.E.2d 796 (1996), aff'd in part, vacated in part, Browning-Ferris

Indus. v. Residents Involved in Saving the Environment, Inc., 254

Va. 278, 492 S.E.2d 431 (1997).   We held that DEQ failed to make

"an explicit determination of 'no substantial present or potential

                               - 2 -
danger to human health or the environment'" as required by Code

§ 10.1-1408.1(D).   Id. at 545, 471 S.E.2d at 803 (citation

omitted).    We remanded the case to the circuit court for remand to

DEQ to make the required statutory determination.      The remand

order did not mention attorneys' fees, nor did Residents raise the

issue of attorneys' fees at that time.

       BFI appealed our decision to the Virginia Supreme Court.        The

Supreme Court remanded the case to the circuit court with

instructions to remand the matter to DEQ to "consider the existing

record and make the required statutory determination before

issuing a new permit in this case."       Browning-Ferris Indus., 254

Va. at 285, 492 S.E.2d at 435.    The Supreme Court did not address

the issue of attorneys' fees, nor did Residents raise the issue at

that time.

       The circuit court entered an order on December 10, 1997,

remanding the matter to DEQ and ordering DEQ to make an explicit

determination whether the landfill facility "poses a substantial

present, or potential danger to human health or environment"

pursuant to Code § 10.1-1408.1(D).       The December 10, 1997 order

also "suspended and set aside" the decision to issue the permit to

BFI.

       On December 29, 1997, Residents filed a motion in circuit

court for Residents' attorneys' fees and costs pursuant to Code

§ 9-6.14:21(A), which provides for the recovery of reasonable

costs and attorneys' fees from an agency in certain circumstances.

                                 - 3 -
The motion included a request for attorneys' fees and costs

incurred in the appellate proceedings as well as the circuit court

proceedings.   By order entered March 3, 1999, the circuit court

awarded Residents $185,000 in attorneys' fees, which included

legal services expended in the circuit court and appellate court

proceedings.   DEQ appeals the award of the attorneys' fees.

                              ANALYSIS

     The circuit court awarded the attorneys' fees on March 3,

1999, more than twenty-one days after the entry of the May 30,

1995 final order in which the circuit court affirmed the decision

by DEQ to issue the permit.   Rule 1:1 provides in pertinent part:

"All final judgments, orders, and decrees, irrespective of terms

of court, shall remain under the control of the trial court and

subject to be modified, vacated, or suspended for twenty-one days

after the date of entry, and no longer."

     A court order is final where it "'disposes of the whole

subject, gives all the relief that was contemplated, provides with

reasonable completeness for giving effect to the sentence, and

leaves nothing to be done in the cause save to superintend

ministerially the execution of the decree.'"   Richardson v.

Gardner, 128 Va. 676, 683, 105 S.E. 225, 227 (1920) (citation

omitted).

     The May 30, 1995 order disposed of the whole subject and

granted all contemplated relief by affirming DEQ's issuance of the

permit.   Furthermore, the May 30, 1995 order did not reserve

                               - 4 -
jurisdiction to the circuit court to award attorneys' fees at a

later time.   Moreover, no order was entered modifying, vacating or

suspending the May 30, 1995 final order within twenty-one days of

the entry of that order.    "In order to toll the time limitations

of Rule 1:1 . . . the trial judge must issue an order modifying,

vacating or suspending the [order] within twenty-one days of the

entry of [the order]."    D'Alessandro v. Commonwealth, 15 Va. App.

163, 167, 423 S.E.2d 199, 201 (1992).    Therefore, pursuant to Rule

1:1, we find that the circuit court lacked jurisdiction to award

attorneys' fees and costs to Residents for legal services rendered

in the circuit court proceedings.

     In addition, the record contains no specific remand from this

Court or the Supreme Court, instructing the circuit court to award

Residents attorneys' fees incurred on appeal.   See O'Loughlin v.

O'Loughlin, 23 Va. App. 690, 691, 479 S.E.2d 98, 98 (1996)

(holding that a specific remand from appellate court is required

for trial court to have jurisdiction to award attorneys' fees

incurred on appeal).    Therefore, the circuit court also lacked

jurisdiction to award Residents attorneys' fees and costs expended

on the appeals in this matter.

     Residents also argue that pursuant to Code § 9-6.14:21, they

were entitled to attorneys' fees because they "substantially

prevail[ed] on the merits of the case" when the matter was

remanded to DEQ to make the requisite statutory finding before

issuing the permit.    See Code § 10.1-1408.1(D).   The record does

                                 - 5 -
not support this contention.   However, based on our holding that

the circuit court lacked jurisdiction to award attorneys' fees, we

need not address this argument.

     Accordingly, we vacate the circuit court's award of

Residents' attorneys' fees and costs.

                                                    Vacated.




                               - 6 -
Bray, J., concurring.

     I join the majority in concluding that the trial court was

without authority to award Residents those attorneys' fees

incurred while challenging the agency decision on appeal.

However, I concur only in the rationale that the trial court

lacked jurisdiction over the issue in the absence of a

particularized remand from this Court or the Supreme Court.

     Former Code § 9-6.14:21 provided, in pertinent part, that:

          In any civil case . . . in which any person
          contests any agency action, . . . such
          person shall be entitled to recover from
          that agency . . . reasonable costs and
          attorney fees if such person substantially
          prevails on the merits of the case and the
          agency is found to have acted unreasonably,
          unless special circumstances would make an
          award unjust. 2

Code § 9-6.14:21 (1981) (amended 1997) (emphasis added).    Thus,

the legislature clearly intended that citizens, successful on

the merits in challenging unreasonable agency action, recover

attendant costs and fees, absent unique circumstances.

Manifestly, the determination that a record permits such relief

rests with that tribunal adjudicating the cause.

     In O'Loughlin v. O'Loughlin, 23 Va. App. 690, 479 S.E.2d 98

(1996), we addressed a claim for costs and fees related to


     2
       The 1997 amendment to Code § 9-6.14:21, inapplicable to
the instant proceedings, required a finding that the "agency's
position is not substantially justified," rather than "acted
unreasonably," as a condition to recovery and limited an award
of attorney’s fees to $25,000. Code § 9-6.14:21.


                              - 7 -
appeal and, relying upon procedural jurisprudence well

established in this Commonwealth, concluded that an award by the

trial court on remand was impermissible, absent "specific . . .

and particularized instructions to do so."   Id. at 694, 479

S.E.2d at 100.

          The rationale for the appellate court being
          the proper forum to determine the propriety
          of an award of attorney's fees for efforts
          expended on appeal is clear. The appellate
          court has the opportunity to view the record
          in its entirety and determine whether the
          appeal is frivolous or whether other reasons
          exist for requiring additional payment.

Id. at 695, 479 S.E.2d at 100; see also Hughes v. Hughes, 173

Va. 293, 306, 4 S.E.2d 402, 407-08 (1939) (trial court upon

proper remand can "fix a reasonable compensation . . . for

services rendered in" the appellate court); Wilson v. Wilson, 25

Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (trial court has

no "jurisdiction" to award "attorney's fees incurred on appeal"

without "specific remand . . . with particularized

instructions").

     Here, Residents failed to initially petition the trial

court, this Court, or the Supreme Court for costs and fees

resulting from a succession of appeals.   Thus, the appellate

courts did not address the issue in the exercise of their

respective jurisdictions, and no resolution was contemplated in

the attendant remand orders.   Under such circumstances, the

trial court, acting later solely upon jurisdiction conferred and


                               - 8 -
limited by remand, was without authority to entertain Residents'

petition for costs and attorneys' fees.

     Accordingly, I share the rationale of the majority in

reversing the disputed award because the trial court was without

the requisite jurisdiction, finding it unnecessary to address

the remaining related issues undertaken by my colleagues.




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