PRESENT: Kinser, C.J., Goodwyn, Millette, Mims, McClanahan,
and Powell, JJ., and Russell, S.J.


CHARLOTTESVILLE AREA FITNESS
CLUB OPERATORS ASSOCIATION, ET AL.
                                             OPINION BY
v.     Record No. 110741             JUSTICE S. BERNARD GOODWYN
                                          January 10, 2013
ALBEMARLE COUNTY BOARD OF
SUPERVISORS, ET AL.

           FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                    Cheryl V. Higgins, Judge


CHARLOTTESVILLE AREA FITNESS
CLUB OPERATORS ASSOCIATION, ET AL.

v.     Record No. 112233

CHARLOTTESVILLE CITY COUNCIL,
ET AL.

     FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Cheryl V. Higgins, Judge

     Charlottesville Area Fitness Club Operators Association,

Atlantic Coast Athletic Clubs of Virginia, Inc., and Gym Quest,

Inc., d/b/a Gold's Gym Charlottesville (collectively, the

Fitness Clubs) appeal from judgments entered by the Circuit

Courts of the City of Charlottesville and the County of

Albemarle sustaining demurrers to their declaratory judgment

actions challenging the lease of public property by the City of

Charlottesville to the Piedmont Family YMCA, Inc., (YMCA) and a

use agreement governing the leased property entered into

between the City, Albemarle County, and the YMCA.   Because we
conclude the plaintiffs failed to assert a justiciable

controversy, we will vacate the circuit courts’ judgments and

dismiss the declaratory judgment actions.

                             Background 1

        In October 2007, the City of Charlottesville advertised

for bidding a proposed lease of property located in McIntire

Park (the Lease) for the purposes of constructing and operating

a non-profit youth and family community recreation facility

(the Facility). 2   The City required that any bids for the lease

be received by October 15 and include a proposed use agreement

setting forth the terms, conditions and requirements for

operation of the Facility (the Use Agreement).    The YMCA

submitted the only bid for the lease and, after public

hearings, the leasing of the property was approved by ordinance

adopted by the Charlottesville City Council on December 17,

2007.    The YMCA subsequently entered into the Lease with the




     1
       Although we present this background to provide a context
to the proceedings instituted in each case, our analysis of
each case is limited to the allegations specific to that case.
     2
       The notice was advertised on October 4 and October 11 in
The Daily Progress pursuant to Code § 15.2-2101(A), which
requires the City to advertise notice of the ordinance
proposing a lease of property described in Code § 15.2-2100
once a week for two successive weeks in a newspaper having
general circulation. Code § 15.2-2100(B) requires the City to
publicly receive bids for the lease of public property after
due advertisement and prohibits the City from leasing such
property for a period longer than forty years.

                                  2
City of Charlottesville, and the Use Agreement with the City

and Albemarle County, both dated January 15, 2008.

     Pursuant to the Lease, the City agrees to lease, for an

initial term of 40 years at a nominal rent of $1.00 per year,

approximately three to five acres of property located on the

western side of McIntire Park, the exact boundaries of the

leasehold will be determined by the City following completion

of a "Master Plan" for McIntire Park.   The Lease grants the

YMCA permission to occupy the property "for the purposes of

constructing and operating a fitness and recreation center with

such amenities as are provided for in the Use Agreement" and

provides that "the use of the Facility shall be primarily for

the benefit of residents of the City of Charlottesville and

Albemarle County, and non-resident members of [the YMCA]."

     The Use Agreement, incorporated as an exhibit to the

Lease, obligates the County to "make a future capital

contribution of $2,030,000 for construction of the Facility"

and the YMCA to "diligently conduct a capital campaign to

solicit contributions from private donors to pay for the cost

of construction of the Facility."   The Use Agreement gives the

City and the County each the right to appoint two members to

the YMCA's board of directors and provides for an anticipated

fee structure for residents of the City and County as well as

financial assistance to be provided to residents by the YMCA


                               3
based on specified income criteria.    It also describes the

components and core functions of the Facility and anticipated

hours of operation.   Additionally, the Use Agreement states

that the County tentatively set aside $1,250,000 in its capital

budgeting for construction of a family aquatics center and that

the City may also commit to a future capital contribution of

$1,250,000 for that purpose, including a competitive pool with

specified access for the Charlottesville High School swim team.

          A.   Fitness Clubs' Action Against Albemarle
                    County Board of Supervisors

     The Fitness Clubs instituted their declaratory judgment

action against the Albemarle County Board of Supervisors and

the County's chief executive officer, Robert W. Tucker, Jr.

(collectively, the Board), in May 2010. 3   They claim the Board

should have issued either a "Request for Proposals" or an

"Invitation to Bid" for "the provision of fitness services to

County residents at below market rates in exchange for a $2

million payment" pursuant to the Virginia Public Procurement

Act (VPPA), Code §§ 2.2-4300 et seq.   According to the Fitness

Clubs, had the Board done so, "one or all of [the Fitness

Clubs] would have responded by submitting a bid and a proposal

which would provide the County with superior services at a cost

     3
       The Fitness Clubs filed an initial complaint on May 12,
2010, and an amended complaint on September 13, 2010.
Charlottesville Area Fitness Club Operators Association was
omitted in the amended complaint.

                                4
to the County less than that provided for in the Use

Agreement."

     In Count I, the Fitness Clubs contend the Board's "award

under the Use Agreement to the YMCA" is a contractually

obligated payment for procurement of services "not authorized

by [Code §] 15.2-953." 4   In Count II, the Fitness Clubs contend

the Board made its "award under the Use Agreement to the YMCA

without regard to the requirements of the VPPA."    In both

Counts I and II, the Fitness Clubs allege the Board's actions

were "arbitrary and capricious," "exceeded the scope of the

authority of the Board of Supervisors," and "violated [the

Fitness Clubs'] right to equal protection and due process under

the Fifth and Fourteenth Amendments to the Constitution of the

United States, and [Article I], Sections 3 and 11 of the

Constitution of Virginia."    The Fitness Clubs seek a

declaration that the actions of the County "are void on each

and all of those grounds" and "that such payment may not be

made."

     In Count III, the Fitness Clubs contend the Board's

"decision to award the Use Agreement to the YMCA" was a "de

facto disqualification of [the Fitness Clubs] as prospective

     4
       Code § 15.2-953 permits localities to "make
appropriations of public funds . . . to any charitable
institution or association, located within their respective
limits or outside their limits if such institution or
association provides services to residents of the locality."

                                 5
bidders or offerors on that contract" and "in violation of the

conditions of the VPPA."    The Fitness Clubs also contend that

the Board's decision in April 2009 appropriating the funds for

the $2.03 million payment "again had the effect of de facto

disqualifying [the Fitness Clubs] as prospective bidders or

offerors on that contract." 5   They seek an "order that the

disqualification of [them] as offerors or bidders be reversed,

and that they be allowed to bid on the Use Agreement." 6   They

further ask the court to enjoin the Board "from proceeding

under the Use Agreement."

     The Board filed a demurrer to the amended complaint, which

the circuit court sustained.

                B.    Fitness Clubs' Action Against
                     Charlottesville City Council

     The Fitness Clubs also instituted a declaratory judgment

action against the Charlottesville City Council and the City's

acting chief administrative officer, Maurice Jones

(collectively, the Council), in May 2010.    In Count I of their

complaint, the Fitness Clubs allege the Council "limited the

bids it would accept to those which would provide for the

construction of a 'non-profit' fitness and recreation center,

     5
       According to the allegations, the $2.03 million
appropriation was removed from the capital improvements plan
budget due to delays in the timeline for the project and was
re-appropriated in April 2009.
     6
       The Fitness Clubs also seek ancillary temporary and
permanent injunctive relief.

                                  6
thereby excluding any for-profit entity or facility from

competition."   The Fitness Clubs contend that had the Council

"instead advertised simply for the construction of a fitness

and recreation center while continuing to require the reduced

membership prices contained in the Use Agreement, it would

still have received the bid from the YMCA" but "would also have

received a bid from one or more of the [Fitness Clubs], each of

whom has a proven track record of successfully running fitness

facilities in the Charlottesville-Albemarle area."   According

to the Fitness Clubs, they were "aggrieved by this exclusion,

and suffered actual injury as a result of their being excluded

from bidding on the proposed Lease and Use Agreement."

     In Count II, the Fitness Clubs allege that the Council

"procured a service from the YMCA, namely the provision of

fitness services at more favorable rates and the right to

acquire exclusive use of a portion of that space, in exchange

for valuable consideration" such that the "transaction was

governed by the [VPPA]."   They further contend the Use

Agreement and allocation of funds were made "without regard for

the requirements of the VPPA."   In both Counts, the Fitness

Clubs claim the Council's actions were "arbitrary and

capricious," "exceeded the scope of [its] authority," and

"violated the [Fitness Clubs'] right to equal protection and

due process under the Fifth and Fourteenth Amendments to the


                                 7
Constitution of the United States, and Sections 3 and 11 of the

Constitution of Virginia." 7   The Fitness Clubs request that the

circuit court void the Lease and Use Agreement.

     The Council filed a demurrer to the complaint, which the

circuit court sustained.

                               Analysis

     Because we are of the opinion that none of the claims

asserted in the declaratory judgment actions presents a

justiciable controversy, we will vacate the judgments of the

circuit courts and dismiss the declaratory judgment actions

because the circuit courts did not have authority to exercise

jurisdiction.

     The Fitness Clubs sought declaratory judgments concerning

the actions of the Charlottesville City Council and the

Albemarle County Board of Supervisors.    Code § 8.01-184 "is the

statutory authority for declaratory judgment proceedings in

this Commonwealth.   From it stem the jurisdiction of the courts

of record to entertain applications for declaratory relief and

the power to make binding adjudications of the rights of the

parties involved."   City of Fairfax v. Shanklin, 205 Va. 227,

229, 135 S.E.2d 773, 775 (1964).

     Code § 8.01-184 states in relevant part:


     7
       The Fitness Clubs also seek ancillary temporary
injunctive relief.

                                  8
       In cases of actual controversy, circuit courts within
       the scope of their respective jurisdictions shall have
       power to make binding adjudications of right, whether
       or not consequential relief is, or at the time could
       be, claimed and no action or proceeding shall be open
       to objection on the ground that a judgment order or
       decree merely declaratory of right is prayed for.

The purpose of a declaratory judgment proceeding is the

adjudication of rights; an actual controversy is a prerequisite

to a court having authority.   If there is no actual controversy

between the parties regarding the adjudication of rights, the

declaratory judgment is an advisory opinion that the court does

not have jurisdiction to render.      The prerequisites for

jurisdiction, an actual controversy regarding the adjudication

of rights, may be collectively referred to as the requirement

of a "justiciable controversy."

       Thus, before a complaint for declaratory judgment can be

entertained by the circuit court, it must appear that there is

an "actual controversy" existing between the parties based upon

an "actual antagonistic assertion and denial of right."       Code

§ 8.01-184; see also Shanklin, 205 Va. at 229, 135 S.E.2d at

775.   "The controversy must be one that is justiciable, that

is, where specific adverse claims, based upon present rather

than future or speculative facts, are ripe for judicial

adjustment."   Shanklin, 205 Va. at 229, 135 S.E.2d at 775.

"The dispute 'must be a real and substantial controversy

admitting of specific relief through a decree of a conclusive


                                  9
character.' "   Erie Ins. Group v. Hughes, 240 Va. 165, 170, 393

S.E.2d 210, 212 (1990) (quoting Aetna Life Ins. Co. v. Haworth,

300 U.S. 227, 241 (1937)).   Additionally, a plaintiff must

establish a "justiciable interest" by alleging facts

"demonstrat[ing] an actual controversy between the plaintiff

and the defendant, such that [the plaintiff's] rights will be

affected by the outcome of the case."   W. S. Carnes, Inc. v.

Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299

(1996) (citing Code § 8.01-184; Cupp v. Board of Supervisors,

227 Va. 580, 589, 318 S.E.2d 407, 411 (1984)).

     The General Assembly created the power to issue

declaratory judgments to resolve disputes "before the right is

violated."   Patterson v. Patterson, 144 Va. 113, 120, 131 S.E.

217, 219 (1926); see also Chick v. MacBain, 157 Va. 60, 66, 160

S.E. 214, 216 (1931) ("The manifest intention of the

legislature . . . was to provide for a speedy determination of

actual controversies between citizens, and to prune . . . the

dead wood attached to the common law rule of 'injury before

action.' ").    " 'The declaratory judgment acts do not create or

change any substantive rights, or bring into being or modify

any relationships, or alter the character of controversies,

which are the subject of judicial power.' "   Williams v.

Southern Bank of Norfolk, 203 Va. 657, 662, 125 S.E.2d 803, 807

(1962) (quoting 26 C.J.S., Declaratory Judgments, § 7 at 59-


                                 10
60)).    "Preventive relief is the moving purpose."   Williams,

203 Va. at 662, 125 S.E.2d at 807.     The object of the

declaratory judgment action must be the adjudication of rights.

        Thus, when the "actual objective in the declaratory

judgment proceeding [i]s a determination of [a] disputed issue

rather than an adjudication of the parties' rights," the case

is not one for declaratory judgment.     Green v. Goodman-Gable-

Gould Co., 268 Va. 102, 108, 597 S.E.2d 77, 81 (2004).

Moreover, "where claims and rights asserted have fully matured,

and the alleged wrongs have already been suffered, a

declaratory judgment proceeding, which is intended to permit

the declaration of rights before they mature, is not an

available remedy."     Board of Supervisors v. Hylton Enters., 216

Va. 582, 585, 221 S.E.2d 534, 537 (1976).

        The intent of the declaratory judgment statutes is
        not to give parties greater rights than those which
        they previously possessed, but to permit the
        declaration of those rights before they mature. In
        other words, the intent of the act is to have courts
        render declaratory judgments which may guide parties
        in their future conduct in relation to each other,
        thereby relieving them from the risk of taking
        undirected action incident to their rights, which
        action, without direction, would jeopardize their
        interests. This is with a view rather to avoid
        litigation than in aid of it.

Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 421, 177 S.E.2d

519, 524 (1970).




                                  11
     "The reason for these rules is that the courts are not

constituted, and the declaratory judgment statute was not

intended to vest them with authority, to render advisory

opinions, to decide moot questions or to answer inquiries which

are merely speculative."   Shanklin, 205 Va. at 229-30, 135

S.E.2d at 775-76.   This Court will consider, sua sponte,

whether a decision would be an advisory opinion, because we do

not have the power to render a judgment that is only advisory.

Martin v. Ziherl, 269 Va. 35, 40, 607 S.E.2d 367, 369 (2005).

A circuit court has no authority to exercise jurisdiction over

a declaratory judgment proceeding absent a justiciable

controversy.   See Erie, 240 Va. at 169–70, 393 S.E.2d at 212;

Shanklin, 205 Va. at 231, 135 S.E.2d at 777.   Thus, we will

examine whether a justiciable controversy was asserted in these

cases.

          A.   Fitness Clubs' Action Against Albemarle
                    County Board of Supervisors

           i. Count I – Violation of Code § 15.2-953

     In Count I, the Fitness Clubs allege the $2.03 million

payment provided for in the Use Agreement is not authorized by

Code § 15.2-953 because it is a payment for the procurement of

services under the VPPA.   The Fitness Clubs seek a declaration

that the actions of the Board related to this appropriation are

void and an order prohibiting such payment to the YMCA.



                                12
     Code § 15.2-953 permits localities to "make appropriations

of public funds, of personal property or of any real estate and

donations to . . . any charitable institution or association,

located within their respective limits or outside their limits

if such institution or association provides services to

residents of the locality."   The Fitness Clubs do not dispute

that the YMCA is a charitable institution or that the YMCA

provides services to the residents of the County.    Rather, the

Fitness Clubs contend that Code § 15.2-953 does not authorize

the Board to make a contractual payment in accordance with the

Use Agreement since the Use Agreement is a procurement of

services under the VPPA.

     The Fitness Clubs' allegations in Count I fail to present

a justiciable controversy.    "We have previously held that the

declaratory judgment statutes may not be used to attempt a

third-party challenge to a governmental action when such a

challenge is not otherwise authorized by statute."   Miller v.

Highland Cnty., 274 Va. 355, 371-72, 650 S.E.2d 532, 540

(2007).   The Fitness Clubs are strangers to the Board's

negotiations with the YMCA, including its decision to make a

$2.03 million payment to the YMCA and enter into the Use

Agreement.   Code § 15.2-953 provides no right of action to a

third party to challenge a locality's appropriation under that

Code section.   Consequently, the Fitness Clubs are using the


                                 13
declaratory judgment statute "to attempt a third-party

challenge to a governmental action when such a challenge is not

otherwise authorized by statute."    Miller, 274 Va. at 371-72,

650 S.E.2d at 540.   In doing so, the Fitness Clubs are

attempting to create "greater rights than those which they

previously possessed," Bishop, 211 Va. at 421, 177 S.E.2d at

524, and "bring into being" a relationship with the Board that

does not exist, Williams, 203 Va. at 662, 125 S.E.2d at 807.

     Although ACAC alleges that it pays taxes in Albemarle

County, it is not seeking to protect the interests of the

taxpayers of Albemarle County and thus does not allege a

justiciable controversy.   We have recognized that "courts of

equity have jurisdiction to restrain the illegal diversion of

public funds at the suit of a citizen and tax payer, when

brought on behalf of himself and others similarly situated."

Johnson v. Black, 103 Va. 477, 484, 49 S.E. 633, 635 (1905)

(emphasis added); see also Gordon v. Board of Supervisors of

Fairfax Cnty., 207 Va. 827, 830-31, 153 S.E.2d 270, 273 (1967)

(plaintiffs may prosecute, for themselves and all others

similarly situated, action challenging unauthorized loan from

local government); Appalachian Elec. Power Co. v. Town of

Galax, 173 Va. 329, 333, 4 S.E.2d 390, 392 (1939) (citizen and

taxpayer may seek to enjoin issuance of bonds that will result

in illegal tax burden); Lynchburg & Rivermont St. Ry. Co. v.


                                14
Dameron, 95 Va. 545, 546, 28 S.E. 951, 951 (1898) (court has

jurisdiction to restrain municipal corporation from levying and

collecting an unauthorized tax or from creating an unauthorized

debt upon application of one or more taxpayers who sue for the

benefit of themselves and all others similarly situated).

However, ACAC did not institute its action for the benefit of

taxpayers and others similarly situated.   Nor has it alleged

that the $2.03 million payment to the YMCA will impose an

illegal tax burden or will otherwise injuriously affect the

taxpayers of the County.

     To the contrary, ACAC seeks to protect its own interests

as a business that provides fitness services.    More

specifically, it contends that had the Board issued a request

for proposals or invitation to bid for the provision of fitness

services in exchange for a $2 million payment, one or all of

the Fitness Clubs would have responded by submitting a bid.

The interests that ACAC advances are made even more apparent by

the harm it claims—that the Board's award under the Use

Agreement, not authorized by Code § 15.2-953, violated its

rights to equal protection and due process. 8   Accordingly, Count

I does not constitute an action by a taxpayer on behalf of

itself and others similarly situated to restrain an unlawful

     8
       The Fitness Clubs assert they have a constitutionally
protected property interest in the public business opportunity
presented by the Use Agreement.

                               15
tax or illegal debt, and therefore, ACAC does not present a

justiciable controversy.

     Finally, regardless of whether the Fitness Clubs seek to

protect their own interests or those of taxpayers, what they

seek in Count I is an order preventing the $2.03 million

payment to the YMCA.   The Fitness Clubs allege that the Board

is contractually bound to make this payment to the YMCA under

the Use Agreement negotiated between the Board, the Council,

and the YMCA.   However, the YMCA is not a party defendant, and

when courts lack the power to bind all parties to the

controversy, opinions are merely advisory "'where, by reason of

inadequacy of parties defendant, the judgment could not be

sufficiently conclusive.'"   Erie, 240 Va. at 170, 393 S.E.2d at

212 (quoting E. Borchard, Declaratory Judgments 35 (2d ed.

1941)).   Without the YMCA as a party defendant, the Fitness

Clubs' declaratory judgment action seeking to prevent payment

under the Use Agreement "cannot be sufficiently conclusive." 9

Erie, 240 Va. at 170, 393 S.E.2d at 212.   Thus, the controversy

was not justiciable and the circuit court did not have

authority to provide the requested declaratory relief.   See id.




     9
       Additionally, the City is not a party to the complaint
filed in the Circuit Court of the County of Albemarle.

                                16
                ii.    Count II – Violation of VPPA

     In Count II, the Fitness Clubs allege the Board violated

the VPPA in awarding the Use Agreement to the YMCA without

issuing a request for proposals or invitation to bid.    They

seek a declaration preventing payment to the YMCA.    As in Count

I, the Fitness Clubs do not allege a justiciable controversy

and are attempting to use a declaratory judgment action to

create rights they do not possess.

     The rights and obligations conferred by the VPPA did not

exist at common law and were created entirely through the

enactment of VPPA's statutory scheme.    Concerned Taxpayers v.

County of Brunswick, 249 Va. 320, 330, 455 S.E.2d 712, 718

(1995).   These remedies are exclusive and do not provide actual

or potential bidders with any remedy independent of those

created by the VPPA.    Sabre Constr. Corp. v. County of Fairfax,

256 Va. 68, 73, 501 S.E.2d 144, 147-48 (1998).    Because the

VPPA "constitutes a waiver of public bodies' sovereign

immunity" and "is in derogation of common law," its provisions

"must be strictly construed."    Id. at 73, 501 S.E.2d at 147.

     Assuming, without deciding, that the Use Agreement was an

award of a public contract within the meaning of the VPPA, 10 the


     10
       The VPPA requires that "[a]ll public contracts with
nongovernmental contractors for the purchase or lease of goods,
or for the purchase of services, insurance, or construction,
shall be awarded after competitive sealed bidding, or

                                 17
Fitness Clubs do not allege that the VPPA provides a mechanism

for them to protest an award of a public contract and they have

no remedy independent of the VPPA. 11    Thus, the Fitness Clubs

allege no justiciable controversy.      In seeking to void the

allocation of funds to the YMCA by reason of a violation of the

VPPA, the Fitness Clubs are attempting to challenge

governmental action in a manner not authorized by statute and

to create rights through the declaratory judgment statute that

they do not have under the VPPA.     Miller, 274 Va. at 371-72,




competitive negotiation as provided in this section, unless
otherwise authorized by law." Code § 2.2-4303(A).
     11
        The provisions of the VPPA "permit only bidders,
offerors, and contractors, within the meaning of the Act, to
invoke those remedies by protesting an award, initiating
administrative procedures, or bringing an action to challenge a
decision to award a contract." Concerned Taxpayers, 249 Va. at
330, 455 S.E.2d at 718; see Code § 2.2-4360(A). The VPPA,
though, "does not provide a right of action to those not
involved in the bidding and procurement process." Concerned
Taxpayers, 249 Va. at 330, 455 S.E.2d at 718. The Fitness
Clubs do not contend that they were actual bidders or offerors
on the Use Agreement, but contend they were denied the
opportunity to bid on the Use Agreement.
     In addition, the Fitness Clubs did not submit a protest to
the Board under Code § 2.2-4360 or institute a legal action
within ten days after they claim the Board decided to or did
award the Use Agreement. "When a special limitation is part of
the statute creating the substantive right, the limitation is
not merely a procedural requirement, but a part of the newly
created substantive cause of action." Sabre Constr. Corp., 256
Va. at 72, 501 S.E.2d at 147. The VPPA's limitation on the
right to appeal the decision of a public body is "a condition
precedent to maintaining the claim and failure to comply with
it bars the claim." Id. Thus, even if the Fitness Clubs were
offerors or bidders on the Use Agreement, they would have no
claim under the VPPA.

                                18
650 S.E.2d at 540; Bishop, 211 Va. at 421, 177 S.E.2d at 524;

Williams, 203 Va. at 662, 125 S.E.2d at 807.

     Finally, without the YMCA as a party defendant, the

Fitness Clubs' declaratory judgment action seeking to prevent

payment under the Use Agreement "cannot be sufficiently

conclusive," and for that reason did not present a justiciable

controversy.   See Erie, 240 Va. at 170, 393 S.E.2d at 212.

                iii. Count III – Violation of VPPA

     In Count III, the Fitness Clubs allege the Board violated

the VPPA by disqualifying them from bidding on the Use

Agreement and seek a declaration reversing the Board's alleged

decision to disqualify them and a declaration allowing them to

bid on the Use Agreement.

     Although the VPPA creates a procedure for challenging a

public body's refusal of permission to participate in the

bidding process or disqualification from participation in the

bidding process, the Fitness Clubs do not allege that they have

rights under those provisions nor have they brought their

action pursuant to those provisions. 12   In seeking to "reverse"


     12
       A "[p]otential bidder or offeror" entitled to bring an
action under Code § 2.2-4364 challenging the refusal of
permission or disqualification from participation in bidding is
a person engaged in the sale of services "of the type to be
procured under the contract, and who at such time is eligible
and qualified in all respects to perform that contract, and who
would have been eligible and qualified to submit a bid or
proposal had the contract been procured through competitive

                                19
their "de facto disqualification," the Fitness Clubs are

attempting to challenge governmental action in a manner not

authorized by statute, and to create rights through the

declaratory judgment statute that they do not have under the

VPPA.   Miller, 274 Va. at 371-72, 650 S.E.2d at 540; Bishop,

211 Va. at 421, 177 S.E.2d at 524; Williams, 203 Va. at 662,

125 S.E.2d at 807.   Thus, the Fitness Clubs fail to allege a

justiciable controversy subject to resolution through a

declaratory judgment proceeding.     Additionally, without the

YMCA as a party defendant, the Fitness Clubs' action seeking to

allow them an opportunity to bid on the Use Agreement, which

was executed in 2008 and would necessarily involve the rights


sealed bidding or competitive negotiation." Code § 2.2-4301.
The Fitness Clubs' action against the County contains no
allegations establishing that they were "eligible and qualified
in all respects to perform that contract" and "would have been
eligible and qualified to submit a bid or proposal had the
contract been procured through competitive sealed bidding or
competitive negotiation." Id. The Fitness Clubs merely allege
that one or all of them would have submitted "a bid and
proposal which would provide the County with superior services
at a cost to the County less than that provided for in the Use
Agreement." There are no allegations purporting to establish
the qualifications or capabilities of the Fitness Clubs, much
less their qualifications or capabilities as they relate to the
terms and conditions of the Use Agreement.
     Furthermore, the Fitness Clubs did not institute an action
against the Board within ten days after they contend the
"disqualification" occurred, whether it occurred when the Board
entered into the Use Agreement with the YMCA in January 2008 or
when the Fitness Clubs contend the $2.03 million payment was
re-appropriated in April 2009. Nor are there any allegations
establishing when the Fitness Clubs received notice of their
"disqualification" to show that their action was filed within
ten days of any such notice. Code § 2.2-4357(A).

                                20
of all parties to that agreement, "cannot be sufficiently

conclusive" and is therefore not justiciable.   Erie, 240 Va. at

170, 393 S.E.2d at 212.

 B.   Fitness Clubs' Action Against Charlottesville City Council

                     i.   Count I – the Lease

      In Count I of their complaint, the Fitness Clubs seek a

declaratory judgment, contending that they were excluded from

bidding on the Lease because the Council "limited the bids it

would accept to those which would provide for the construction

of a 'non-profit' fitness and recreation center."   They request

that the Lease be voided because they were denied their "right

to equal protection and due process."

      The Council advertised the invitation for bids pursuant to

Code § 15.2-2101.   The Fitness Clubs do not claim that the

Council failed to comply with this Code section, nor do they

assert a right of action against the Council for a violation of

the procedures governing the leasing of public property as set

forth in Code § 15.2-2100, et seq.   Rather, the basis for their

request for a declaratory judgment is the claim that the

Council's decision to limit the Facility to a nonprofit fitness

and recreation center violated their constitutionally protected

property rights.

      First, according to the allegations of their complaint,

and the language of the notice of bidding and public hearing


                                21
incorporated therein, the Council did not exclude any person or

organization from bidding, and therefore, did not exclude the

Fitness Clubs from submitting a bid for construction and

operation of a nonprofit facility.    Accordingly, this Count

does not allege an "actual antagonistic assertion and denial of

right."   Code § 8.01-184.

     Also, as discussed previously in this opinion,

"declaratory judgment statutes may not be used to attempt a

third-party challenge to a governmental action when such a

challenge is not otherwise authorized by statute."    Miller, 274

Va. at 371-72, 650 S.E.2d at 540.    This is particularly

applicable to the Fitness Clubs' challenge to the Lease since

the Fitness Clubs did not seek to bid on the Lease, did not

protest the Council's limitation to construction and operation

of a non-profit facility, and did not otherwise seek a

determination from the Council as to whether they could submit

a bid on the Lease.   In essence, they are attempting to use the

declaratory judgment statute to create rights they do not

otherwise have.   Bishop, 211 Va. at 421, 177 S.E.2d at 524;

Williams, 203 Va. at 662, 125 S.E.2d at 807.

     Furthermore, this Count suffers from the same deficiencies

as the Counts against the Board.     The Fitness Clubs seek to

void the Lease between the Council and the YMCA, even though

the YMCA is not a party to these proceedings.    Without the YMCA


                                22
as a party defendant, the Fitness Clubs' action seeking to void

the Lease "cannot be sufficiently conclusive," 13 and does not

state a justiciable controversy.          Erie, 240 Va. at 170, 393

S.E.2d at 212.

                     ii.   Count II – the Use Agreement

        In Count II, the Fitness Clubs allege that the Council

awarded the Use Agreement to the YMCA in violation of the VPPA

because the Council did not issue a request for proposals or

invitation to bid in connection with the Use Agreement.

        Like the Fitness Clubs' claim against the Board for its

failure to issue a request for proposals or invitation to bid

regarding the Use Agreement, this declaratory judgment claim

against the Council also fails to present a justiciable

controversy.       Assuming that the Use Agreement was an award of a

public contract within the meaning of the VPPA, the VPPA

provides no mechanism for the Fitness Clubs to protest an award

of a public contract and they have no remedy independent of the

VPPA.        In seeking to void the Use Agreement, the Fitness Clubs

are attempting to challenge governmental action in a manner not

authorized by statute and create rights through the declaratory

judgment statute that they do not have under the VPPA.         Miller,

274 Va. at 371-72, 650 S.E.2d at 540; Bishop, 211 Va. at 421,

177 S.E.2d at 524; Williams, 203 Va. at 662, 125 S.E.2d at 807.

        13
             The County is also not a party to these proceedings.

                                     23
Furthermore, as with the other claims, without the YMCA as a

party defendant, the Fitness Clubs' action seeking to void the

Use Agreement "cannot be sufficiently conclusive."   Erie, 240

Va. at 170, 393 S.E.2d at 212.

                              Conclusion

     None of the claims asserted by the Fitness Clubs presents

a justiciable controversy.    Therefore, the circuit courts did

not have authority to exercise jurisdiction in the declaratory

judgment actions.   Accordingly, we will vacate the judgments

and dismiss both actions.

                       Record No. 110741 – Vacated and dismissed.
                       Record No. 112233 – Vacated and dismissed.


CHIEF JUSTICE KINSER, concurring.

     To institute a declaratory judgment proceeding, a

plaintiff must have standing, i.e., "a 'justiciable interest'

in the subject matter of the proceeding, either in its own

right or in a representative capacity."    W.S. Carnes, Inc. v.

Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299

(1996); accord Deerfield v. City of Hampton, 283 Va. 759, 764,

724 S.E.2d 724, 726 (2012).    "The point of standing is to

ensure that the person who asserts a position has a substantial

legal right to do so and that [the person's] rights will be

affected by the disposition of the case."   Westlake Props.,

Inc. v. Westlake Pointe Prop. Owners Ass'n, Inc., 273 Va. 107,


                                  24
120, 639 S.E.2d 257, 265 (2007) (emphasis added); accord

Livingston v. Virginia Dep't of Transp., 284 Va. 140, 154, 726

S.E.2d 264, 272 (2012); see also Black's Law Dictionary 1536

(9th ed. 2009) (defining the term "standing" as "[a] party's

right to make a legal claim or seek judicial enforcement of a

duty or right").      To have the requisite "justiciable interest,"

a plaintiff "must demonstrate an actual controversy between the

plaintiff and the defendant, such that [the plaintiff's] rights

will be affected by the outcome of the case."     W.S. Carnes, 252

Va. at 383, 478 S.E.2d at 299; accord Deerfield, 283 Va. at

764, 724 S.E.2d at 726; Cupp v. Board of Supervisors, 227 Va.

580, 591, 318 S.E.2d 407, 412 (1984).     Pursuant to Code § 8.01-

184, the declaratory judgment statute, there must be "an

'actual controversy' existing between the parties, based upon

an, 'actual antagonistic assertion and denial of right,' before

the [declaratory judgment petition] can be entertained and an

adjudication made."      City of Fairfax v. Shanklin, 205 Va. 227,

229, 135 S.E.2d 773, 775 (1964) (quoting Code § 8.01-184).

     As the majority recognizes, rendering a declaratory

judgment in the absence of an actual controversy constitutes an

advisory opinion. 1    And, while this Court has said that it


     1
       The term "advisory opinion" is defined as "[a] nonbinding
statement by a court of its interpretation of the law on a
matter submitted for that purpose." Black's Law Dictionary
1201 (9th ed. 2009).

                                   25
" 'will not entertain a standing challenge made for the first

time on appeal, the Court will consider, sua sponte, whether a

decision would be an advisory opinion because the Court does

not have the power to render a judgment that is only

advisory.' "   Appalachian Voices v. State Corp. Comm'n, 277 Va.

509, 515, 675 S.E.2d 458, 460 (2009) (quoting Martin v. Ziherl,

269 Va. 35, 40, 607 S.E.2d 367, 369 (2005)).   "[A]ppellate

courts do not sit to give opinions on moot questions or

abstract matters, but only to decide actual controversies

injuriously affecting the rights of some party to the

litigation."   Hallmark Pers. Agency, Inc. v. Jones, 207 Va.

968, 971, 154 S.E.2d 5, 7 (1967).

     In the appeals now before the Court, Charlottesville Area

Fitness Club Operators Association, Atlantic Coast Athletic

Clubs of Virginia, Inc. (ACAC), and Gym Quest, Inc., d/b/a

Gold's Gym Charlottesville, (collectively, the Fitness Clubs),

challenge the actions of the Charlottesville City Council (the

Council) and the Albemarle County Board of Supervisors (the

Board) in executing a contract for fitness and recreation

services (the Use Agreement) and a lease of real property (the

Lease) with the Piedmont Family YMCA, Inc. (YMCA).   None of the

plaintiffs, however, alleged any rights that would be adversely

affected by the outcome of this litigation.    Thus, in the

absence of an actual controversy, any adjudication on the


                                26
merits of the declaratory judgment actions would be an advisory

opinion.   For that reason, I conclude that the circuit court

did not err by sustaining, albeit for the wrong reason, the

demurrers filed by the Council and the Board.   See Deerfield,

283 Va. at 767, 724 S.E.2d at 728 (affirming the trial court's

judgment dismissing a declaratory judgment action by applying

the right result for the wrong reason doctrine).

     In their declaratory judgment actions against the Council

and the Board, the Fitness Clubs challenged, in part, the

validity of the Use Agreement under Code § 15.2-953 because it

was, according to the Fitness Clubs, a contract for the

procurement of services and thus under the purview of the

Virginia Public Procurement Act (VPPA), Code §§ 2.2-4300

through -4377.   Code § 15.2-953 authorizes localities to

appropriate, among other things, public funds to any charitable

institution or association if the particular entity serves the

residents of the donating locality.   However, neither that

statute nor any other authorizes an entity that claims status

as a potential bidder, see Code § 2.2-4301 (defining the term

"[p]otential bidder or offeror"), to challenge the legality of

an appropriation made pursuant to Code § 15.2-953.

     In other words, the Fitness Clubs, by using the

declaratory judgment statute as a vehicle to challenge the

Council's and Board's actions with regard to the Use Agreement,


                                27
are attempting to assert rights that they do not otherwise

have. 2   Code § 8.01-184 "may not be used to attempt a third-

party challenge to a governmental action when such a challenge

is not otherwise authorized."    Miller v. Highland Cnty., 274

Va. 355, 371, 650 S.E.2d 532, 540 (2007).    In Miller, the

plaintiff property owners filed a declaratory judgment action

challenging the jurisdiction and authority of a locality's

planning commission in approving a conditional use permit for

nearby property.    Id. at 368-69, 650 S.E.2d at 538.   Although

the plaintiffs conceded they had no statutory right to appeal,

they argued they could challenge the legality of the planning

commission's decision through a declaratory judgment action.

Id. at 369, 650 S.E.2d at 538.    We disagreed.

      We stated that Code § 8.01-184 "do[es] not create or alter

any substantive rights, or bring any other additional rights

into being. . . . 'The intent of the declaratory judgment

statutes is not to give parties greater rights than those which


      2
       I disagree with the majority that the Fitness Clubs
cannot contest the legality of the Use Agreement because they
did not bring their challenge under the VPPA. Code § 2.2-4360
contains the requirements for protesting an "award or decision"
made under the VPPA, and Code § 2.2-4364 allows certain bidders
or offerors to bring actions in the appropriate circuit court
to challenge particular decisions. Because the Council and
Board did not proceed under the VPPA in the first instance and
operated outside of those provisions in executing the Use
Agreement, it would have been impossible for the Fitness Clubs
to challenge the validity of the Use Agreement according to the
VPPA's requirements.

                                 28
they previously possessed, but to permit the declaration of

those rights before they mature.'"    Id. at 370, 650 S.E.2d at

539 (quoting Cupp, 227 Va. at 592, 318 S.E.2d at 413).

Moreover, "the declaratory judgment statutes may not be used to

attempt a third-party challenge to a governmental action when

such a challenge is not otherwise authorized by statute."     Id.

at 371-72, 650 S.E.2d at 540.    Because no statute gave "third

parties . . . a right of appeal from such a determination" by

the planning commission, the plaintiffs "effectively

attempt[ed] to create a right of appeal that does not exist by

statute."   Miller, 274 Va. at 371, 650 S.E.2d at 539-40.   We

thus affirmed the trial court's judgment dismissing the action.

Id. at 372, 650 S.E.2d at 540.

     The same rationale applies here.   The Fitness Clubs are

using Code § 8.01-184 "to attempt a third-party challenge to a

governmental action when such a challenge is not otherwise

authorized by statute."   Miller, 274 Va. at 371-72, 650 S.E.2d

at 540.

     In addition, none of the Fitness Clubs alleged facts to

demonstrate the right as taxpayers to challenge the validity of

the Use Agreement.   Taxpayers have the common law right to

"restrain local government officials from exceeding their

powers in any way which will injuriously affect the taxpayers."

Gordon v. Board of Supervisors, 207 Va. 827, 830, 153 S.E.2d


                                 29
270, 273 (1967); see Concerned Taxpayers v. County of

Brunswick, 249 Va. 320, 331, 455 S.E.2d 712, 718 (1995).     This

common law right is based on taxpayers being responsible for

debts incurred illegally and requires that the suit be brought

on behalf of the taxpayer plaintiffs and others similarly

situated, i.e., other taxpayers who would be forced to pay for

the illegal expenditure.   See Appalachian Elec. Power Co. v.

Town of Galax, 173 Va. 329, 332-33, 4 S.E.2d 390, 392 (1939);

Lynchburg & Rivermont St. Ry. Co. v. Dameron, 95 Va. 545, 546,

28 S.E. 951, 951-52 (1898).

     In its complaint against the Board,    ACAC   alleged that it

is a taxpayer in Albemarle County.   But as the majority notes,

its action was not brought as a taxpayer challenging the

illegal expenditure of money for which it and other similarly

situated taxpayers will be compelled to pay.    Rather, ACAC,

like all of the Fitness Clubs, challenged the legality of the

actions taken by the Council and the Board because it wished to

compete for the opportunity to provide fitness and recreation

services as specified in the Use Agreement.    Thus, its claim

was not brought on behalf of other taxpayers.      In the action

against the Board, Gold's Gym Charlottesville is not a taxpayer

in Albemarle County, and none of the other Fitness Clubs are

taxpayers in the City of Charlottesville.    Therefore, they

failed to allege, in either declaratory judgment action, rights


                                30
as taxpayers that will be affected by the outcome of these

appeals with regard to the Use Agreement.

     In their declaratory judgment action against the Council,

the Fitness Clubs also asserted that the Council, by

advertising to lease real property for the purpose of

constructing a "non-profit" youth and family community

recreation facility, "exclude[ed] any for-profit entity or

facility from competition."   Notably, the Fitness Clubs did not

allege that the Council permitted only non-profit entities to

bid on the proposed lease.    Furthermore, while the Fitness

Clubs asserted that the Council's decision with regard to the

terms of the Lease was arbitrary and capricious, they failed to

specify any violation of the statutes governing the lease of

public property. 3


     3
       The Fitness Clubs, nevertheless, alleged a violation of
their due process and equal protection rights due to Council's
advertising and award of the Lease. The "activity of doing
business, or the activity of making a profit is not property in
the ordinary sense" and cannot be a property interest for
purposes of the Due Process Clause. College Sav. Bank v.
Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666,
675 (1999). The Fitness Clubs' asserted inability to bid on
the Lease, therefore, cannot constitute a denial of due
process. See id.; Lee v. City of Norfolk, 281 Va. 423, 433,
706 S.E.2d 330, 335 (2011) (plaintiff in procedural due process
claim must be deprived of constitutionally protected interest
in life, liberty, or property). Similarly, the Fitness Clubs'
alleged equal protection claim fails because Code §§ 15.2-2100
through -2108.1:1 do not give them a "legally protected
interest" in bidding on a lease of the City's property. See
Wilkins v. West, 264 Va. 447, 459, 571 S.E.2d 100, 106 (2002)
(standing for equal protection claim requires an "injury in

                                 31
     In sum, I conclude that the Fitness Clubs failed to

"demonstrate an actual controversy . . . such that [their]

rights will be affected by the outcome of [these actions]."

W.S. Carnes, 252 Va. at 383, 478 S.E.2d at 299.      They did not

have a "substantial legal right" to adjudicate their

declaratory judgment actions because they did not assert the

denial of rights provided by statute or common law.      Westlake

Props., 273 Va. at 120, 639 S.E.2d at 265.      Thus, any decision

by this Court would be advisory.       See Appalachian Voices, 277

Va. at 515, 675 S.E.2d at 460 (holding that "'the Court does

not have the power to render a judgment that is only

advisory'") (quoting Martin, 269 Va. at 40, 607 S.E.2d at 369).

For these reasons, I respectfully concur and would affirm the

judgments of the circuit court.




fact – an invasion of a legally protected interest") (internal
quotation marks omitted). See Code §§ 15.2-2100 through -
2108.1:1 (imposing restrictions on the sale or lease of certain
public properties, and the granting of franchises, by cities
and towns).

                                  32
JUSTICE MIMS, dissenting.

     The appellants allege they would have bid to provide goods

or services to the governing bodies of Albemarle County and the

City of Charlottesville under the terms of the Virginia Public

Procurement Act, Code § 2.2-4300 et seq. (“the VPPA”), but

these bodies failed to solicit bids.   The appellants therefore

brought actions for declaratory judgment under Code § 8.01-184

in which they assert that the VPPA applied to the goods and

services the bodies sought to procure.   They seek a declaration

that the actions contravening the VPPA are void.    The majority

concludes that such actions for declaratory judgment do not

present a justiciable controversy.   Because I believe the

General Assembly anticipated that courts would enforce the VPPA

against public bodies that fail to comply with its

requirements, I must dissent.

     Code § 2.2-4303(A) requires that “[a]ll public contracts

with nongovernmental contractors for the purchase or lease of

goods, or for the purchase of services, insurance, or

construction, shall be awarded after competitive sealed

bidding, or competitive negotiation as provided in this

section, unless otherwise authorized by law.” ∗   The appellants


     ∗
       Code § 2.2-4301 defines a public contract as “an
agreement between a public body and a nongovernmental source
that is enforceable in a court of law.”


                                33
filed actions for declaratory judgment in which they asserted

that the contractual arrangements entered into by the appellees

were contracts within the meaning of the statute.    The

appellees countered that their actions were authorized by Code

§ 15.2-953 and therefore were outside the scope of the VPPA.

Thus the issue presented in these cases is whether the VPPA

applies at all.

     The majority opinion begs the question.    It assumes the

VPPA applies and then faults the appellants for failing to cite

any provision within it that provides a remedy for the wrong

they allege.   However, the wrong they allege is that the public

bodies erroneously determined the VPPA did not apply and

consequently failed to comply with its requirements.

     The remedies set forth in the VPPA presuppose that it

applies.   For example, as noted in the majority opinion, Code

§ 2.2-4360(A) defines the procedures available to a bidder or

offeror, or potential bidder or offeror, to protest the award

or decision to award a contract.     However, under the terms of

Code § 2.2-4303(A), such an award may only be made after

competitive sealed bidding or competitive negotiation, unless

one of the exceptions set forth elsewhere in Code § 2.2-4303

applies.

     Here, the public bodies conducted no competitive sealed

bidding or competitive negotiation and invoked none of the


                                34
statutory exceptions.    Rather, they determined, correctly or

incorrectly, that the VPPA did not apply because in their view

their procurement was independently authorized by Code § 15.2-

953.   Consequently, no contract was “awarded” within the

meaning of Code § 2.2-4360.    Accordingly, the procedures set

forth in that provision by which actual or potential bidders

and offerors protest awards have nothing to do with the inquiry

these cases present.

       Similarly, the majority opinion notes that Code § 2.2-4364

sets forth procedures available to actual or potential bidders

and offerors refused permission to participate or disqualified

from participating in bidding or competitive negotiation.

However, the public bodies in this case failed to initiate the

bidding or competitive negotiation processes; they believed the

VPPA did not apply.    Therefore, there was no bidding or

competitive negotiation for anyone to be refused permission to

participate or disqualified from participating in.

Accordingly, like Code § 2.2-4360, Code § 2.2-4364 has nothing

to do with the inquiry these cases present.

       In short, the VPPA provides no internal procedures for

determining whether it applies to a contract.    Yet the General

Assembly clearly intended the VPPA to apply to those contracts

defined in Code § 2.2-4303(A).    The conclusion that the General

Assembly provided no mechanism to adjudicate a dispute over


                                 35
whether the VPPA applied to a procurement action, simply

because the VPPA does not contain any, leaves the VPPA

unenforceable where a public body determines by fiat that the

VPPA does not apply.   That is an untenable result in face of

the clear statutory expression of the legislature’s intent that

the VPPA’s procurement procedures be mandatory, rather than

voluntary.   Because the majority opinion leaves such decisions

by public bodies outside the scope of judicial review, I must

dissent from the Court’s determination that these actions for

declaratory judgment do not present justiciable controversies.



JUSTICE McCLANAHAN, with whom SENIOR JUSTICE RUSSELL joins,
concurring.

     I concur in the majority's judgment because I agree that

none of the claims asserted presents a justiciable controversy

for the reasons stated by the majority.   I write separately to

clarify that, in my opinion, the absence of a justiciable

controversy deprived the circuit courts of subject matter

jurisdiction. 1



     1
       Although this Court has previously cautioned that the
term "[j]urisdiction is a word of many, too many, meanings,"
Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d 698,
702 (2010) (internal quotation marks and citations omitted),
the majority declines to classify the nature of the
jurisdictional defect in this case, preferring instead to leave
the question conspicuously unanswered.



                                36
     "Subject matter jurisdiction is the authority granted to a

court by constitution or by statute to adjudicate a class of

cases or controversies."   Earley v. Landsidle, 257 Va. 365,

371, 514 S.E.2d 153, 156 (1999).     "The lack of subject matter

jurisdiction cannot be waived," "cannot be conferred on a court

by the litigants," and "may be raised at any time."    Virginian-

Pilot Media Cos., LLC v. Dow Jones & Co., Inc., 280 Va. 464,

468, 698 S.E.2d 900, 902 (2010); see also Afzall v.

Commonwealth, 273 Va. 226, 230, 639 S.E.2d 279, 282 (2007)

(subject matter jurisdiction cannot be given to a court by

agreement or inaction of parties "and the want of such

jurisdiction of the trial court will be noticed by this [C]ourt

ex mero motu").   "A judgment or order entered by a court that

lacks jurisdiction of the subject matter is a nullity."

Virginian-Pilot, 280 Va. at 468, 698 S.E.2d at 902.

     The General Assembly conferred subject matter jurisdiction

upon circuit courts to issue declaratory judgments to resolve

disputes "before the right is violated."    Patterson v.

Patterson, 144 Va. 113, 120, 131 S.E. 217, 219 (1926).     The

scope of the court's subject matter jurisdiction is set forth

in Code § 8.01-184, which states, in pertinent part, that "[i]n

cases of actual controversy, circuit courts within the scope of

their respective jurisdictions shall have    power to make

binding adjudications of right."     An "actual controversy" is


                                37
one that is based upon an "actual antagonistic assertion and

denial of right."   Id.   In other words, "[t]he controversy must

be one that is justiciable, that is, where specific adverse

claims, based upon present rather than future or speculative

facts, are ripe for judicial adjustment."   City of Fairfax v.

Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964). 2

     Absent a justiciable controversy, a circuit court has no

subject matter jurisdiction over a declaratory judgment

proceeding.   See, e.g., Erie Ins. Group v. Hughes, 240 Va. 165,

170, 393 S.E.2d 210, 212 (1990) (sustaining defendant's

challenge to subject matter jurisdiction after "[f]inding no

justiciable controversy within the definition of our

declaratory judgment statutes"); Fairfax County Board of

Supervisors v. Southland Corp., 224 Va. 514, 519 & n.1, 521,

297 S.E.2d 718, 720-21 & n.1, 720 (1982) (holding "that the

[circuit] court had subject matter jurisdiction" after finding

the existence of the prerequisites for a justiciable

controversy under Code § 8.01-184). 3


     2
       As the majority explains, the determination of whether a
justiciable controversy exists entails the consideration of
certain prerequisites to promote the legislative underpinnings
for declaratory actions and to ensure courts do not render
advisory opinions, decide moot questions or answer inquiries
which are merely speculative. Shanklin, 205 Va. at 229-30, 135
S.E.2d at 775-76.
     3
       These decisions make clear that subject matter
jurisdiction is not conferred upon the circuit court simply by
filing a declaratory judgment action or invoking the circuit

                                 38
     Accordingly, since none of the claims asserted by the

Fitness Clubs presents a justiciable controversy, Code § 8.01-

184 did not confer authority upon the circuit courts to

entertain the declaratory judgment actions.   In other words,

the circuit courts lacked subject matter jurisdiction over

these actions.   Therefore, I agree their judgments should be

vacated.




court's authority under Code § 8.01-184. Rather, the statutory
requirements for existence of an actual, justiciable
controversy must be examined to determine whether the circuit
court has acquired subject matter jurisdiction to entertain a
declaratory judgment action. See also Earley, 257 Va. at 371,
514 S.E.2d at 156 (statutory requirements under Code § 8.01-653
must be satisfied to confer subject matter jurisdiction upon
Court to permit its consideration of petition for writ of
mandamus).

                                39
