Russell Co. Dept. of Social Services v. O'Quinn

Present: 	All the Justices
RUSSELL COUNTY DEPARTMENT
OF SOCIAL SERVICES
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. 	Record No. 990309 	January 14, 2000
SHEILAH JACKSON O'QUINN
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Nicholas E. Persin, Judge Designate
The primary issue we consider in this appeal is whether
Code §§ 8.01-186 and -191, which are contained in the Virginia
Declaratory Judgment Act, authorize a circuit court to award
attorney's fees to a prevailing litigant.
The relevant facts are not in dispute. 	The Russell
County Department of Social Services reassigned its employee,
Sheilah Jackson O'Quinn, from a position of child protective
services worker to a different position within the Department
of Social Services. 	O'Quinn considered the reassignment a
demotion, and she filed a grievance utilizing the Russell
County grievance procedure.
James Gillespie, Russell County Administrator, ultimately
determined that O'Quinn should be reinstated to her former
position as a child protective services worker. 	The
Department of Social Services filed a bill of complaint for
declaratory judgment in the circuit court, styled Russell
County Department of Social Services v. O'Quinn, and requested
that the court declare that the county administrator had

erroneously determined that O'Quinn's complaint was grievable.
The circuit court dismissed the bill of complaint because the
court concluded that it lacked subject matter jurisdiction.
O'Quinn instituted this proceeding by filing a suit for
declaratory and injunctive relief. 	She requested that the
circuit court compel the Department of Social Services to
reinstate her to the position of child protective services
worker. 	She also requested attorney's fees and costs. 	The
circuit court entered a decree which, among other things,
ordered O'Quinn's reinstatement and established a schedule for
the filing of O'Quinn's verified petition for attorney's fees
and costs. 	Subsequently, the court considered O'Quinn's
petition for attorney's fees, and memoranda submitted by
counsel for O'Quinn and the Department of Social Services, and
entered a decree which awarded O'Quinn $6,405 in attorney's
fees and $1,075 in costs. 	The court stated in its decree that
a "[c]ourt, sitting in equity, is vested with the authority
and discretion to award reasonable attorney's fees and costs
as 'further relief' pursuant to . . . Code . . . §§ 8.01-186
and 8.01-191." 	The Department of Social Services appeals.
Code § 8.01-186 states:
"Further relief based on a declaratory judgment
order or decree may be granted whenever necessary or
proper. 	The application shall be by motion to a
court having jurisdiction to grant the relief. 	If
the application is deemed sufficient the court
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shall, on reasonable notice, require an adverse
party whose rights have been adjudicated by the
declaration of right to show cause why further
relief should not be granted forthwith."
Code § 8.01-191 states:
"This article is declared to be remedial. 	Its
purpose is to afford relief from the uncertainty and
insecurity attendant upon controversies over legal
rights, without requiring one of the parties
interested so to invade the rights asserted by the
other as to entitle him to maintain an ordinary
action therefor. 	It is to be liberally interpreted
and administered with a view to making the courts
more serviceable to the people."
The Department of Social Services argues that the circuit
court erred in awarding attorney's fees to O'Quinn because
neither the Virginia Declaratory Judgment Act nor any other
statute provides for such an award. 	Responding, O'Quinn
asserts that Code §§ 8.01-186 and -191 authorize a circuit
court to award attorney's fees to a prevailing litigant.
Continuing, O'Quinn contends that Code § 8.01-191 mandates
that courts liberally construe the statutes contained in the
Virginia Declaratory Judgment Act and that the words "further
relief" contained in Code § 8.01-186 authorize a court to make
an award of attorney's fees. 	We disagree with O'Quinn.
The plain language contained in Code § 8.01-191 requires
that the courts interpret and administer the Virginia
Declaratory Judgment Act "with a view to making the courts
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more serviceable to the people." 	This statute, however, does
not authorize a court to make an award of attorney's fees.
We have repeatedly stated that the "general rule in this
Commonwealth is that in the absence of a statute or contract
to the contrary, a court may not award attorney's fees to the
prevailing party." 	Prospect Development Co. v. Bershader, 258
Va. 75, 92, 515 S.E.2d 291, 300 (1999); accord Gilmore v.
Basic Industries, Inc., 233 Va. 485, 490, 357 S.E.2d 514, 517
(1987). 	Even though we have recognized that there are certain
exceptions to this rule, none of those exceptions is pertinent
here. 	See Bershader, 258 Va. at 92, 515 S.E.2d at 300.
Rather, O'Quinn must identify a specific statutory grant of
authority that enables a court to award attorney's fees to
her.
Contrary to O'Quinn's assertion, the phrase "further
relief" contained in § 8.01-186 does not authorize a court to
award attorney's fees to a litigant. 	Rather, that term
permits a court to enter necessary orders to implement or
enforce a declaratory judgment entered by the court. 	See
Winborne v. Doyle, 190 Va. 867, 872-73, 59 S.E.2d 90, 93
(1950). 	We simply cannot, and will not, infer that the
General Assembly intended to authorize a court to award
attorney's fees in a declaratory judgment action when the
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Virginia Declaratory Judgment Act fails expressly to grant
such authority.
The Department of Social Services also contends that the
circuit court erred in awarding costs to O'Quinn that included
costs she incurred in the first proceeding that the Department
of Social Services initiated, and the present proceeding. 	The
Department of Social Services asserts that the proceedings are
two distinct proceedings, and O'Quinn is not entitled to
recover for costs incurred in the former proceeding. 	The
Department of Social Services also asserts that the circuit
court abused its discretion by awarding certain costs because
such costs are not recoverable. 	O'Quinn argues that the
Department of Social Services failed to raise these issues in
the circuit court and, therefore, these issues cannot be
asserted for the first time on appeal. 	We agree with O'Quinn.
The Department of Social Services argued in the circuit
court that the decision to award costs was within the
discretion of the court, but it "would not be 'just and
proper'" to award costs to O'Quinn. 	The Department of Social
Services did not assert in the circuit court the arguments
that it raises here. 	We will not permit the Department of
Social Services to raise these issues for the first time on
appeal. 	Rule 5:25.
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Accordingly, we will affirm that portion of the circuit
court's judgment which awards costs to O'Quinn, we will
reverse that portion of the judgment which awards attorney's
fees, and we will enter final judgment here.
Affirmed in part,
reversed in part,
and final judgment.
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