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
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;
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
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.
(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
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).