Mary Jane Hall, Judge
ORDER
This matter comes before the Court on Plaintiff's Motion for Release of Bond. The Court has considered the legal authority submitted by counsel and is persuaded that the Virginia Code does not authorize releasing the surety bond following the dismissal of the appeal. Therefore, the Motion for Release of Bond is DENIED.
Background
Plaintiff obtained a judgment against all three defendants in Norfolk General District Court on July 8, 2014. Defendant Warren moved for a rehearing, which the general district court granted. The judgment was vacated on August 6, 2014 and then reentered. All defendants appealed the same day and posted a single civil appeal bond in all three of their names.
In circuit court, Plaintiff moved to dismiss the appeal as to Defendants Lawless and Veneziano on the ground that it had not been properly perfected. Judge Fulton granted Plaintiff's motion, finding that the notice of appeal applied "solely to Warren" because Lawless and Veneziano had appeared without counsel in general district court. The appeals of Lawless and Veneziano were dismissed by order dated March 25, 2015.
Plaintiff has nonsuited Defendant Warren and moved for release of the appeal bond. Two representatives for the surety, ABC Bail Bonds, appeared pro se and opposed Plaintiff's motion. The Court granted Plaintiff's motion and advised the surety representatives that they could obtain counsel and seek reconsideration before the order became final pursuant to Rule 1:1 of the Rules of the Supreme Court of Virginia.
The surety subsequently appeared by counsel and timely asked the court to vacate the May 15, 2015 order so that it could brief the issue. The Court did vacate that order. At this time, the Court concludes that the surety's position is correct. The motion to release bond must be denied.
Discussion
Code § 16.1-107 governs the requirements for appeals from general district court, and states the following regarding appeal bonds:
If such bond is furnished by or on behalf of any party against whom judgment has been rendered for money or property or both,
the bond shall be conditioned for the performance and satisfaction of such judgment or order as may be entered against such party on appeal, and for the payment of all costs and damages which may be awarded against him in the appellate court. If the appeal is by a party against whom there is no recovery except for costs, the bond shall be conditioned for the payment of such costs and damages as may be awarded against him on the appeal.
This code section formerly provided that the appeal bond should be in an amount "sufficient to satisfy the judgment of the court in which it was entered" should the appeal be withdrawn or "not so perfected." Code
§ 16.1-107 (2008) (amended 2011). On at least
two instances, Virginia circuit courts interpreted that prior version of the statute to permit release of bond to a plaintiff when a defendant fails to perfect its appeal from general district court.
Powell v.
Rawlings, 78 Va. Cir. 369, 370 (Greensville Cnty. 2009);
Shaw v.
Macher Properties, No. CL07001048-00 at 2 (Roanoke July 11, 2007). The General Assembly eliminated the phrase "or not so perfected," however, when it amended the statute in 2011.
Code § 16.1-113 governs how such appeals are tried and executions thereof issued, and states as follows:
If judgment is recovered by the appellee, execution shall issue against the principal and his surety, jointly or separately, for the amount of the judgment, including interests and costs, with damages on the aggregate at the rate of ten percent annually, from the date of that judgment until payment, and for the costs of the appeal; and the execution shall be endorsed "No security is to be taken." If the decision is reversed, the party substantially prevailing shall recover his costs and the order or judgment shall be made or given as ought to have been made or given by the judge of the court from which the appeal was taken.
The Court finds that both of these statutes support the surety's position. Code § 16.1-107 clearly requires that a "judgment or order" be entered against the appellant in the appeal itself as a necessary condition for release of the appeal bond to a plaintiff. Code § 16.1-113 by its text also requires a judgment in circuit court before its provisions for execution of a judgment apply. Because the Court previously held that the corporate defendants did not perfect their appeal, there was no appeal of their case. Consequently, there was no judgment or order against them in the appeal.
The amendment of Code §16.1-107 to remove the language allowing appeal bonds to be disbursed upon a failure to perfect an appeal support the conclusion that the court may not require a surety to pay until the appeal has concluded on the merits.
Accordingly, the Court finds that Plaintiff is not entitled to an order directing release of the civil appeal bond. The Motion is DENIED.
Pursuant to Rule 1:13, endorsements by counsel are waived.
The Clerk is directed to forward copies of this order to counsel.
Entered: 2 July 2015
/s/_________
Mary Jane Hall, Judge