Western Surety Company v. Kimberly A. Pinchbeck, Comm'r of Accounts, Circuit Court, City of Richmond

Opinion

COURT OF APPEALS OF VIRGINIA

Record No. 0071-25-2

WESTERN SURETY COMPANY v. KIMBERLY A. PINCHBECK, COMMISSIONER OF ACCOUNTS, CIRCUIT COURT, CITY OF RICHMOND

Present: Judges Beales, O’Brien and Ortiz Argued at Richmond, Virginia Opinion Issued July 14, 2026*

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Jacqueline S. McClenney, Judge

Richard T. Pledger (Wright, Constable & Skeen, LLP, on briefs), for appellant.

Flora T. Hezel, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General; Steven G. Popps, Chief Deputy Attorney General; Leslie A.T. Haley, Deputy Attorney General, on brief), for appellee.

Amicus Curiae: Virginia Conference of Commissioners of Accounts (John K. Cottrell; Cottrell Fletcher & Cottrell PC, on brief), for appellee.

MEMORANDUM OPINION BY JUDGE RANDOLPH A. BEALES

Western Surety Company (“Western Surety”) appeals the Circuit Court of the City of

Richmond’s decision granting Kimberly Pinchbeck, the Commissioner of Accounts for the

circuit court, the ability to recover her fees from fiduciary bonds that were secured by Western

Surety. Western Surety argues that the circuit court erred when it found Western Surety liable

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. under the fiduciary bonds for Commissioner Pinchbeck’s costs and fees and that Commissioner

Pinchbeck’s fees were unreasonable.

BACKGROUND

Bonnie Castro qualified as guardian and conservator of the assets of Agenor Castro and

Rosa Castro2 on June 4, 2021. To become guardian and conservator of the estates, Bonnie

Castro “entered into and acknowledged a bond as Guardian in the penalty of One Thousand

Dollars, payable and conditioned according to law, but without surety.” She also “together with

Western Surety Company, her surety, . . . entered into and acknowledged a bond as Conservator

in the penalty of One Hundred Twenty Seven Thousand Dollars.” Also on June 4, 2021,

Western Surety and Bonnie Castro signed a bond agreement for each of the estates that were

both in the amount of $127,000.

On September 1, 2021, Kimberly Pinchbeck—the Commissioner of Accounts in the

Circuit Court of the City of Richmond—filed a written report with the circuit court that outlined

an apparent course of self-dealing by Bonnie Castro. On December 16, 2021, Commissioner

Pinchbeck issued a summons to Bonnie Castro requiring that Castro file with Pinchbeck

a SETTLEMENT OF ACCOUNTS of all money and other property which you, as Conservator have received or become chargeable with, or have disbursed, since your qualification, or since the date of your last account, in proper form and with supporting documentation, as required by Section 64.2-1304, et seq., of the Code of Virginia of 1950, as amended.

(Emphases in original). The summons stated that if Bonnie Castro did not provide

Commissioner Pinchbeck with the settlement of accounts within 30 days “after the date this

summons was served on you,” then Bonnie Castro’s failure to file the settlement of accounts

would “be reported to the Court as a basis for further proceedings authorized and directed by

2 The record also refers to Rosa Castro as “Rose Castro.” -2- Section 64.2-1215.” On February 16, 2022, after Bonnie Castro apparently failed to file the

settlement of accounts, the circuit court issued a show cause order requiring Bonnie Castro to

appear before the court to explain “why the fines authorized under § 64.2-1216 of the Code of

Virginia, 1950, as amended, or other procedures under said Section, shall not be imposed upon

her.”

On January 18, 2022, Commissioner Pinchbeck filed with the circuit court a “Petition by

Commissioner of Accounts for Forfeiture of Bond and Removal of Guardian and Conservator.”

Following an April 5, 2022 hearing, the circuit court entered an order removing Bonnie Castro as

the guardian and conservator of Agenor and Rosa Castro. Among other things, that order stated

“that the Commissioner of Accounts shall recover her fees, costs and expenses, including fi[l]ing

fees, private process service fees, attorney’s fees, and any other costs or expenses incurred

herein, such amount to be determined at a later date.” The court then continued the case “for

proof of damages and costs for which Bonnie Castro and her surety may stand liable, if any.”

On March 10, 2023, Commissioner Pinchbeck filed a memorandum in support of “her

request for bond forfeiture on the principal, Bonnie Castro and Western Surety Company, as

surety.” On March 22, 2023, Western Surety filed a brief that, among other things, opposed

Commissioner Pinchbeck’s request that she be reimbursed for her own fees by forfeiture of the

bonds at issue. Following several continuances, the circuit court entered an order on July 16,

2024 forfeiting the bond for Agenor Castro in the amount of $68,036.12 and forfeiting the bond

for Rosa Castro in the amount of $53,491.47. However, the circuit court continued the question

of whether the bonds should also be forfeited to reimburse Commissioner Pinchbeck for her

fees.3

3 The circuit court also continued the question of whether the bonds should be forfeited to reimburse the successor conservator of Agenor and Rosa Castro. -3- On August 27, 2024, the parties met for a hearing to consider, among other things,

Commissioner Pinchbeck’s request to have her fees reimbursed by forfeiture of the fiduciary

bonds. At the end of the hearing, the circuit court stated that it would “go back and review the

arguments and the documents that” the parties had submitted and that it would “have a decision

to you, within two weeks.” On September 6, 2024, the circuit court entered an order denying

Commissioner Pinchbeck’s request. That order stated, “Bonnie Castro shall be held personally

liable for any amounts due and owing to the estate of Agenor and/or Rosa Castro” and ruled that

Commissioner Pinchbeck’s “request[] for her fees, costs and expenses to be paid from the

Fiduciary Bond of Agenor Castro and/or Rosa Castro is DENIED.” (Emphasis in original).

On September 17, 2024, Commissioner Pinchbeck filed a motion with the circuit court

asking the court to reconsider its decision denying her request. On September 23, 2024,

Commissioner Pinchbeck, by counsel, filed a “Motion to Suspend Finality of Order Dated

September 6, 2024.” In that motion, Commissioner Pinchbeck explained that she did not receive

a copy of the circuit court’s September 6, 2024 order “until September 16, 2024 - leaving little

time for the Commissioner to seek reconsideration by this Court . . . and virtually no time for the

notation of an appeal, if the Commissioner’s Motion for Reconsideration is denied.”

Commissioner Pinchbeck also provided the trial judge a proposed order on September 23, 2024

that would have suspended the September 6, 2024 order.

The parties were before the circuit court again at a hearing on September 24, 2024 to

consider the Commissioner’s motions. During the hearing, the circuit court stated that its “order

was entered September 6th. 21 days is to September 27th. The only thing at this point I can do

-4- is suspend my order pending consideration of the motion to reconsider.”4 The circuit court then

explained that it would “enter an order suspending my September 6th order” so that the court

would have “an opportunity to hear from the parties on the motion to reconsider.” Counsel for

Commissioner Pinchbeck then notified the circuit court of her proposed order “suspending the

finality” of the September 6, 2024 order. The circuit court thanked counsel for the draft order

suspending the September 6, 2024 order. However, this order was apparently never entered.5

On October 1, 2024, the circuit court entered a continuance order that seemingly tried to

vacate its September 6, 2024 order and suspended that order “to allow for the Court to hear

arguments on the Commissioner’s Motion for Reconsideration at the next hearing.” In a

footnote to this October 1, 2024 order, the circuit court stated that it “made its ruling vacating the

September 6, 2024 Order on September 24, 2024 to avoid losing jurisdiction pursuant to Rule

1:1 of the Rules of the Supreme Court of Virginia.” On December 13, 2024, the circuit court

entered an order (1) granting Commissioner Pinchbeck’s motion to reconsider and (2) forfeiting

the fiduciary bonds to reimburse Commissioner Pinchbeck for the fees that she incurred

prosecuting the case against Bonnie Castro. Western Surety filed a motion objecting to the

circuit court’s decision on January 2, 2025. On January 10, 2025, Western Surety filed its notice

of appeal in the circuit court.

On April 14, 2026, the parties appeared before this Court for oral argument on Western

Surety’s appeal. At the conclusion of oral argument, this Court directed the parties to provide

4 Rule 1:1 states, “All final judgments, orders, and decrees, irrespective of terms of court, remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” Rule 1:1(a). 5 At the end of the hearing, Commissioner Pinchbeck stated that she had “a couple of other copies of the -- of the order” but the circuit court stated that it was “going to give this back to you because I’ve handwritten on it” so that “you all can take it downstairs.” The circuit court also stated, “I’ll actually give this to you all to be filed.” -5- supplemental briefing. This Court asked the parties to address whether they could “find anything

that was issued by the court” after “the September 6, 2024 order that would provide any further

information to us” on whether the circuit court entered an order suspending the September 6,

2024 order until October 1, 2024 (which was “after September 27th, the last day that” the circuit

court could suspend the September 6, 2024 order under Rule 1:1).6 This Court also asked the

parties to address whether there was “anything else that remained to be done in the September 6,

2024 order so that perhaps it was not a final order actually?” While both parties filed

supplemental briefs, neither was able to locate an order entered by the circuit court within 21

days of the September 6, 2024 order that suspended or otherwise modified the September 6,

2024 order. However, counsel for Commissioner Pinchbeck argued in her supplemental brief

that the September 6, 2024 order was not a final order because it did not state whether the fees

sought by the Commissioner were reasonable or necessary and because it did not clarify what

amounts were due or owed by Bonnie Castro to the Commissioner.7

ANALYSIS

“All final judgments, orders, and decrees, irrespective of terms of court, remain under the

control of the trial court and may be modified, vacated, or suspended for twenty-one days after

the date of entry, and no longer.” Rule 1:1(a).

Unless otherwise provided by rule or statute, a judgment, order, or decree is final if it disposes of the entire matter before the court,

6 The circuit court did issue another order on September 30, 2024, which did not actually state that it was suspending the September 6, 2024 order. Regardless, that order was also entered more than 21 days after the September 6, 2024 order so it was also void because the circuit court had lost jurisdiction to enter it. 7 Counsel for Commissioner Pinchbeck also argues in her supplemental briefing that the September 6, 2024 order did not address a motion entered by Agenor and Rosa Castro’s new conservator requesting an additional forfeiture of the fiduciary bonds at issue. However, the September 6, 2024 order clearly did address the new conservator’s motion since it ordered “that an additional forfeiture from Western Surety shall be paid” to the new conservator in the amount of $21,907.50. -6- including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order, or decree.

Rule 1:1(b). “The Supreme Court repeatedly has emphasized that ‘a court speaks only through

its written orders. And, orders speak as of the day they were entered.’” Bailey v.

Commonwealth, 73 Va. App. 250, 262 (2021) (quoting Wagner v. Shird, 257 Va. 584, 588

(1999)). Thus, when “determining whether a circuit court retains jurisdiction over a matter when

it issues a ruling, the critical event is the circuit court’s entry of a written order and not any

pronouncements the circuit court may make from the bench.” Id. at 261-62. In addition, the

Supreme Court has frequently said that “a court always has jurisdiction to determine whether it

has subject matter jurisdiction,” as well as to determine whether a lower court had subject matter

jurisdiction, and “the lack of subject matter jurisdiction can be raised at any time in the

proceedings, even for the first time on appeal by the court sua sponte.” Watson v.

Commonwealth, 297 Va. 347, 352 (2019) (quoting Morrison v. Bestler, 239 Va. 166, 170

(1990)).

“Neither the filing of post-trial or post-judgment motions, nor the court’s taking such

motions under consideration, nor the pendency of such motions on the twenty-first day after

final judgment, is sufficient to toll or extend the running of the 21-day period prescribed by

Rule 1:1. . . .” Sch. Bd. of the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556

(1989) (first citing Harvey v. Telephone Co., 198 Va. 213, 218 (1956); then citing Lyle v.

Ekleberry, 209 Va. 349, 350-51 (1968); and then citing Smith v. Commonwealth, 207 Va. 459,

466-67 (1966)). See also James v. James, 263 Va. 474, 482-83 (2002) (same). Therefore, “the

pendency of [a party’s] motion for reconsideration, and the subsequent proceedings thereon,

have no effect on the outcome.” Caudill Rowlett Scott, Inc., 237 Va. at 556.

-7- “A final order is one which ‘disposes of the entire action and leaves nothing to be done

except the ministerial superintendence of execution of the judgment.’” Kosko v. Ramser, 299

Va. 684, 687 (2021) (quoting Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560

(2002)). See also Daniels v. Truck & Equip. Corp., 205 Va. 579, 585 (1964) (quoting Marchant

& Taylor v. Mathews County, 139 Va. 723, 734 (1924), for the same proposition). “The filing of

ancillary motions for the recovery of costs or the filing of other post-trial motions does not

suddenly transform an otherwise final order into a nonfinal order.” Kosko, 299 Va. at 689. To

hold otherwise would mean that “anytime a litigant seeks other kinds of recoverable costs, or for

that matter files any post-trial motion, there would, by definition, remain something to be done.

Cases could be placed on indefinite hold by the filing of post-trial motions. Such an approach

has little to commend it.” Id. Thus, in Kosko, the Supreme Court ruled that the circuit court’s

order awarding costs to the defendants “was void because it was entered more than twenty-one

days following entry of the” final order even though the circuit court “stated from the bench on

the twentieth day that it was awarding costs to the defendants.” Id.

Here, following an April 5, 2022 hearing, the circuit court entered an order that (1)

adopted Commissioner Pinchbeck’s recommendation to remove Bonnie Castro as guardian and

conservator and (2) ruled that Commissioner Pinchbeck “shall recover her fees, costs and

expenses, including fi[l]ing fees, private process service fees, attorney’s fees, and any other costs

or expenses incurred herein, such amount to be determined at a later date.” Thus, when the

circuit court ruled on September 6 that “Bonnie Castro shall be held personally liable for any

amounts due and owing to the estate of Agenor and/or Rosa Castro” and denied Commissioner

Pinchbeck’s “request[] for her fees, costs and expenses to be paid from the Fiduciary Bond of

Agenor Castro and/or Rosa Castro,”—but also ordered that Commissioner Pinchbeck could not

recover those fees from Western Surety—the only thing left for the circuit court to do was to

-8- determine the exact amount of costs and fees that Pinchbeck could recover from Bonnie Castro.

Therefore, because “[t]he filing of ancillary motions for the recovery of costs . . . does not

suddenly transform an otherwise final order into a nonfinal order,” the circuit court’s September

6, 2024 order was final. Kosko, 299 Va. at 689. Thus, despite the arguments made by

Commissioner Pinchbeck’s counsel in the supplemental briefing that she filed with this Court

following oral argument on April 14, 2026, we find that the circuit court had lost jurisdiction

when it issued all of its subsequent orders to the September 6, 2024 order in this matter—each of

which was entered after September 27, 2024.

Indeed, both Commissioner Pinchbeck and the circuit court treated the September 6 order

as if it were final in the days after the circuit court entered that order. Shortly after she received

a copy of the September 6 order, Commissioner Pinchbeck filed a motion for reconsideration of

the September 6 order and a “Motion to Suspend Finality of Order Dated September 6, 2024.”

Commissioner Pinchbeck’s motion explained that she would have “virtually no time for the

notation of an appeal” if the circuit court were to deny her motion for reconsideration of the

September 6 order. At the September 24, 2024 hearing where the circuit court considered

Commissioner Pinchbeck’s motion, the circuit court stated that “[t]he only thing at this point I

can do is suspend my order pending consideration of the motion to reconsider” because the

circuit court only had until September 27, 2024 to amend the September 6 order.8 Then, in its

October 1, 2024 order, the circuit court actually explained that it “made its ruling vacating the

September 6, 2024 Order on September 24, 2024 to avoid losing jurisdiction pursuant to Rule

1:1 of the Rules of the Supreme Court of Virginia.” It would not have lost jurisdiction if the

September 6, 2024 order had not been a final order, including in the circuit court’s mind as well.

8 The circuit court judge stated, “Like, as it stands now, my order was entered September 6th. 21 days is to September 27th. The only thing at this point I can do is suspend my order pending consideration of the motion to reconsider.” -9- Therefore, because the September 6 order was treated as a final order by the circuit court and the

parties—and because the September 6 order left nothing for the circuit court to do other than to

determine the exact amount of costs and fees that Commissioner Pinchbeck was to recover—that

September 6, 2024 order was final (and appealable).

Because the September 6 order was a final order and because the circuit court did not

subsequently, within the next 21 days, enter a written order staying, vacating, or otherwise

modifying that order, the circuit court lost jurisdiction over this matter on September 27, 2024.

As noted supra, the Supreme Court has repeatedly reiterated that a court speaks only through its

written orders. See, e.g., Wagner, 257 Va. at 586; Kosko, 299 Va. at 689; Jefferson v.

Commonwealth, 298 Va. 473, 477 (2020); Caudill Rowlett Scott, Inc., 237 Va. at 556; Lyle, 209

Va. 350-51; Berean Law Grp., P.C. v. Cox, 259 Va. 622, 626 (2000); Austin v. Consolidation

Coal Co., 256 Va. 78, 81 (1998); Walton v. Commonwealth, 256 Va. 85, 94 (1998); Davis v.

Mullins, 251 Va. 141, 148-49 (1996); Town of Front Royal v. Front Royal & Warren County

Indus. Park Corp., 248 Va. 581, 586 (1994); Robertson v. Superintendent of the Wise Corr. Unit,

248 Va. 232, 235 n.* (1994). The fact that the circuit court may have intended to stay the

September 6 order is of no consequence if it did not enter a written order doing so within the 21

days before it lost jurisdiction under Rule 1:1. “Although a seemingly harsh result, binding

Supreme Court precedent dictates this conclusion.” Bailey, 73 Va. App. at 262 (citing the

Supreme Court’s opinion in Wagner v. Shird, in which the losing party “filed a post-trial motion,

the circuit court conducted a hearing on that motion, and the circuit court orally announced a

ruling on the post-trial motion from the bench” before losing jurisdiction under Rule 1:1, yet

“[t]he Supreme Court held that the failure of the circuit court to enter a written order while it

retained jurisdiction rendered its ruling on the post-trial motion ‘a nullity’” (quoting Wagner, 257

Va. at 586)). Therefore, as required by longstanding Supreme Court precedent, we find that the

- 10 - circuit court lacked jurisdiction to enter the December 13, 2024 order that Western Surety

appeals from in this case because the final order issued by the circuit court in this matter was the

September 6, 2024 order. We therefore remand this matter to the circuit court for it to re-enter

the September 6, 2024 order in this matter and to vacate all the orders it entered in this matter

after September 27, 2024, including the December 13, 2024 order, from which Western Surety

appealed.

CONCLUSION

In short, the September 6, 2024 order was a final appealable order because it left nothing

for the circuit court to do other than to determine the exact amount of costs and fees owed to

Commissioner Pinchbeck, and it also found that Western Surety could not be required to pay

those costs and fees as the surety in this matter. While the circuit court expressed an intention

from the bench during the September 24, 2024 hearing to suspend the finality of the September

6, 2024 order, the circuit court did not enter another written order doing so until more than 21

days after the September 6 order, at which time it had lost jurisdiction to do so. Therefore,

pursuant to Rule 1:1, the circuit court lost jurisdiction over this matter on September 27, 2024,

and orders entered after that date are void, including the December 13, 2024 order appealed from

here. We thus remand this matter to the circuit court for it to re-enter its September 6, 2024

order as the final order in the case, for it to vacate all of the orders it entered in this matter after

September 27, 2024—including the December 13, 2024 order from which Western Surety

appealed, and for it to conduct any further necessary proceedings consistent with this opinion.

Remanded and vacated.

- 11 -