Present: Kinser C.J., Goodwyn, Millette, and Mims, JJ., and 

Carrico and Koontz, S.JJ.*

GARR N. JOHNSON, ET AL. 

 OPINION BY 

v. Record No. 092323 JUSTICE LEROY F. MILLETTE, JR. 

 March 4, 2011 

GREGORY WOODARD, ET AL. 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

Westbrook J. Parker, Judge Designate 

 In this appeal, we consider whether the circuit court 

erred in imposing sanctions against forty Gloucester citizens 

(the petitioners) who submitted petitions in the circuit court 

seeking the removal of four members (the supervisors) of 

Gloucester County’s seven member Board of Supervisors pursuant 

to Code §§ 24.2-233 and 24.2-235. Although the petitioners 

raise a number of issues, we address only two issues that are 

dispositive of this appeal. First, whether the circuit court 

retained jurisdiction beyond 21 days to consider a motion for 

sanctions after entry of a nonsuit order which stated that the 

court was retaining jurisdiction and that it was not a final 

order for purposes of Rule 1:1. Second, whether the 

petitioners were parties to the removal action such that they 

may be subject to sanctions pursuant to Code § 8.01-271.1. We 

hold that the circuit court had jurisdiction to consider the 

 *

 Justice Koontz presided and participated in the hearing 

and decision of this case prior to the effective date of his 

retirement on February 1, 2011; Justice Kinser was sworn in as 

Chief Justice on February 1, 2011. 
motion for sanctions, but erred in imposing sanctions against 

the petitioners because they were not parties to the removal 

action. 

I. BACKGROUND

The petitioners submitted petitions pursuant to Code 

§§ 24.2-233 and 24.2-235 seeking to remove the supervisors from 

office.1 The petitions were signed by the petitioners and also 

were signed by ten percent of the registered voters who voted 

in the last election for the Gloucester County Board of 

Supervisors. The petitions alleged that the supervisors 

engaged in conduct that amounted to a “neglect of duty, misuse 

of office, or incompetence in the performance of duties.” At 

the time the petitions were submitted in the circuit court, the 

 1

 Code § 24.2-233, entitled “Removal of elected and certain 

appointed officers by courts,” provides in pertinent part: 

Upon petition, a circuit court may remove from 

office any elected officer or officer who has been 

appointed to fill an elective office, residing within 

the jurisdiction of the court: 

1. For neglect of duty, misuse of office, or 

incompetence in the performance of duties 

when that neglect of duty, misuse of 

office, or incompetence in the performance 

of duties has a material adverse effect 

upon the conduct of the office. 

 Code § 24.2-235, entitled “Procedure,” establishes the 

procedure for initiating a removal action, and provides that 

once a petition is filed in the circuit court, “the court shall 

issue a rule requiring the officer to show cause why he should 

not be removed from office.” 

2
supervisors were under criminal indictments for, among other 

things, violating the Virginia Freedom of Information Act. The 

petitions cited the allegations made in the indictments as a 

basis for removal pursuant to Code § 24.2-233. 

After the petitions were filed, the circuit court issued 

rules to show cause against the supervisors as required by Code 

§ 24.2-235. The circuit court appointed a special prosecutor 

to litigate the removal action, and to prosecute the 

supervisors on the criminal charges alleged in the indictments. 

The criminal charges against the supervisors were later 

dismissed upon a motion to dismiss filed by the special 

prosecutor. 

The special prosecutor then moved to nonsuit the removal 

action. During a hearing on the motion to nonsuit, the special 

prosecutor first stated that the motion was made strictly on 

procedural grounds, that the signatures of the petitioners were 

not executed under penalty of perjury, and that the grounds for 

removal were not stated with reasonable accuracy and detail. 

However, the special prosecutor added that witnesses who were 

initially cooperative were no longer cooperative. Based upon 

the information that he had from the witnesses, the special 

prosecutor stated that while there were “bad decisions” made, 

there were “no criminal acts” committed by the supervisors, and 

that he believed the case would not withstand a motion to 

3
strike. The circuit court granted the motion and entered an 

order entitled “ORDER OF NONSUIT” (the nonsuit order). The 

nonsuit order stated, in part: 

[It is] ORDERED that, for purposes of Rule 1:1, 

this is not a final order, in that this Court shall 

retain jurisdiction of this matter to consider any 

application for attorney’s fees and costs and such 

other relief as may be sought. 

After entry of the nonsuit order, the supervisors filed an 

application for attorney’s fees and costs pursuant to Code 

§ 24.2-238, and a motion for sanctions against the petitioners 

pursuant to Code § 8.01-271.1. During a hearing on these 

motions, the circuit court stated that he had “never seen more 

of a misuse of the judicial system” in his 23 years as a judge. 

The circuit court awarded the supervisors attorney’s fees and 

costs pursuant to Code § 24.2-238.2 The court also ordered that 

each petitioner pay $2,000 as a sanction for violating Code 

 2

 In 2009, after the resolution of this case in the circuit 

court, the General Assembly amended Code § 24.2-238. The 

amendment prohibits the imposition of attorney’s fees, costs, 

and sanctions on persons who sign removal petitions. The 

amendment states: 

No person who signs a petition for the removal 

of an official pursuant to § 24.2-233 or who 

circulates such a petition (i) shall be liable for 

any costs associated with removal proceedings 

conducted pursuant to the petition, including 

attorney fees incurred by any other party or court 

costs, or (ii) shall have sanctions imposed against 

him pursuant to § 8.01-271.1. 

2009 Acts chs. 868, 876. 

4
§ 8.01-271.1. The June 2, 2009 order awarding attorney’s fees 

and costs and imposing sanctions was entered well more than 21 

days after the November 19, 2008 nonsuit order. We granted the 

petitioners this appeal. 

II. DISCUSSION

A. Jurisdiction 

The petitioners argue that the nonsuit order was a final 

order for purposes of Rule 1:1, and thus the circuit court lost 

jurisdiction over the case 21 days after its entry. 

Accordingly, the petitioners contend that the circuit court did 

not have jurisdiction to award the supervisors attorney’s fees 

and costs or to impose sanctions against the petitioners 

because the circuit court’s order awarding attorney’s fees and 

costs and imposing sanctions was entered more than 21 days 

after entry of the nonsuit order. We disagree. 

Under Rule 1:1, “[a]ll final judgments, orders, and 

decrees . . . shall remain under the control of the trial court 

and subject to be modified, vacated, or suspended for twentyone days after the date of entry, and no longer.” In 

Williamsburg Peking Corp. v. Kong, 270 Va. 350, 619 S.E.2d 100 

(2005), we discussed Rule 1:1 and a circuit court’s 

jurisdiction in a case in which a plaintiff moved for a nonsuit 

when confronted with a motion for sanctions. 

5
In Williamsburg Peking, the circuit court granted the 

plaintiff’s motion for a nonsuit, but refused to consider the 

defendant’s pending motion for sanctions, concluding that it no 

longer had jurisdiction after granting the plaintiff’s motion 

for a nonsuit. Id. at 352, 619 S.E.2d at 101. In reversing 

the judgment of the circuit court, we stated that “an order 

granting a nonsuit should be subject to the provisions of Rule 

1:1,” and, as such, “like all final judgments, [the nonsuit 

order] remained under the control and jurisdiction of the trial 

court for 21 days after the date of entry.” Id. at 354, 619 

S.E.2d at 102 (internal quotation marks and citations omitted). 

Recognizing that a motion for sanctions “has no bearing on the 

facts giving rise to a right to seek judicial remedy,” we 

concluded that “the entry of a nonsuit order does not conclude 

a case as to any pending motion for sanctions.” Id. 

Accordingly, we stated that under the facts of the case, the 

circuit court was “empowered to consider the sanctions motion 

either before the entry of the nonsuit order or within 21 days 

after the entry of the nonsuit order.” Id. at 355, 619 S.E.2d 

at 102-03. 

Thus, our decision in Williamsburg Peking holds that a 

circuit court retains jurisdiction to consider a party’s motion 

for sanctions for 21 days after entry of a nonsuit order. 

However, in this case, unlike in Williamsburg Peking, the 

6
nonsuit order explicitly stated the circuit court’s intent to 

retain jurisdiction to consider the motion for sanctions beyond 

the 21-day period in Rule 1:1. The supervisors argue that this 

language in the nonsuit order was sufficient to retain 

jurisdiction beyond the 21-day period in Rule 1:1. We agree. 

In Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 

263 Va. 555, 558, 561 S.E.2d 734, 735 (2002), we addressed “the 

requirements of Rule 1:1 to extend the time within which a 

final judgment remains under the control of the trial court.” 

In Super Fresh, we stated: 

Rule 1:1 facially contemplates the existence of 

a final judgment that a court subsequently seeks to 

modify, vacate, or suspend. The rule is not 

applicable prior to the entry of a final judgment, 

and the twenty-one day time period contained in the 

rule does not delay the finality of a judgment. 

Thus, when a trial court enters an order, or decree, 

in which a judgment is rendered for a party, unless 

that order expressly provides that the court retains 

jurisdiction to reconsider the judgment or to address 

other matters still pending in the action before it, 

the order renders a final judgment and the twenty-one 

day time period prescribed by Rule 1:1 begins to run. 

Id. at 561, 561 S.E.2d at 737. 

Thus, Super Fresh holds that a circuit court may avoid the 

application of the 21 day time period in Rule 1:1 by including 

specific language stating that the court is retaining 

jurisdiction to address matters still pending before the court. 

In the present case, the nonsuit order explicitly stated the 

court’s intent to retain jurisdiction over the case: “this 

7
Court shall retain jurisdiction of this matter to consider any 

application for attorney’s fees and costs.” The nonsuit order 

also stated that “for [the] purposes of Rule 1:1, this is not a 

final order.” Under our holding in Super Fresh, the nonsuit 

order was not a final order under Rule 1:1 because the language 

was sufficient for the court to retain jurisdiction to consider 

the motions for attorney’s fees and costs and sanctions. We 

therefore hold that the circuit court had jurisdiction to enter 

the order awarding attorney’s fees and costs and imposing 

sanctions against the petitioners. 

B. Parties to the Removal Action 

The petitioners next contend that the circuit court erred 

in sanctioning them pursuant to Code § 8.01-271.1 because they 

were not parties to the removal action. The petitioners assert 

that the only parties to the removal action are the 

Commonwealth, as the moving party, and the supervisors, as the 

responding parties. Therefore, the petitioners conclude that 

the circuit court erred in imposing sanctions against them.3 We 

agree with the petitioners on this issue. 

Pursuant to Code § 24.2-233, a removal action commences 

“[u]pon petition” that “must be signed by a number of 

 3

 As we stated in footnote 2, supra, the General Assembly 

amended Code § 24.2-238 while this case was on appeal. Under 

current Code § 24.2-238(B), no person who signs a removal 

petition shall have sanctions imposed against him pursuant to 

Code § 8.01-271.1. 

8
registered voters who reside within the jurisdiction of the 

officer equal to ten percent of the total number of votes cast 

at the last election for the office that the officer holds.” 

After the petition is filed in the circuit court, “the court 

shall issue a rule requiring the officer to show cause why he 

should not be removed from office.” Code § 24.2-235 (emphasis 

added). Thus, petitioners initiate a removal action by 

submitting petitions that, once filed in the circuit court, 

require the court to issue rules to show cause against the 

officers. While petitioners in a removal action initiate the 

action by filing a petition, the Code does not state that they 

are parties to the removal action. 

Although the Code does not explicitly state who is the 

moving party in a removal action, Code § 24.2-237 provides 

guidance. This Code section, titled “Who to represent 

Commonwealth; trial by jury; appeal,” provides that the 

“attorney for the Commonwealth shall represent the Commonwealth 

in any trial under this article.” The section goes on to state 

that “[t]he Commonwealth and the defendant shall each have the 

right to apply to the Supreme Court for a writ of error.” Code 

§ 24.2-237. This language presupposes that the Commonwealth is 

the moving party in a removal action. This view is also 

supported by our case law. In reviewing a removal action under 

a predecessor statute, we stated it is “one which is primarily 

9
public in its nature, which although not a criminal case is one 

highly penal in its nature, and one in which the Commonwealth 

is the party plaintiff.” Warren v. Commonwealth, 136 Va. 573, 

594, 118 S.E. 125, 131 (1923). 

Nothing in the Code or our jurisprudence supports the 

supervisors’ argument that the petitioners are parties to the 

removal action. The supervisors correctly note that the 

caption of this case in the circuit court – and the caption of 

the case in this Court – lists the petitioners as the moving 

parties. The supervisors also cite the fact that the circuit 

court purported to assign a special prosecutor to represent the 

interests of the petitioners. But, neither putting a nonparty’s name in the caption of a case nor assigning counsel to 

represent a non-party makes such person a party to a case. 

A petitioner in a removal action is analogous to a victim 

in a criminal proceeding. In both cases, while the 

Commonwealth’s Attorney may be advancing the interests of the 

petitioner or victim, the real party in interest is the 

Commonwealth. Selected Risks Ins. Co. v. Dean, 233 Va. 260, 

263-64, 355 S.E.2d 579, 580-81 (1987). Additionally, in both 

cases, the Commonwealth’s Attorney does not owe the petitioner 

or victim a professional duty. See Rule 1.2(a) of the Virginia 

Rules of Professional Conduct; Restatement (3rd) of the Law 

Governing Lawyers § 14 (2000) (creation of lawyer-client 

10
relationship requires manifestation of an “intent that the 

lawyer provide legal services for the person” and that “the 

lawyer manifests to the person [the lawyer’s] consent to do 

so”). The Commonwealth’s Attorney’s duty is to further the 

best interests of the Commonwealth, not the interests of the 

respective petitioners. Counsel for the supervisors 

acknowledged that the special prosecutor represented the 

Commonwealth and not the petitioners when, in arguing against 

the entry of a nonsuit, he stated: 

The posture in which this case is in front of you is 

in the form of the Commonwealth versus public 

officials. The petitioners have no role in the sense 

that it is the Commonwealth that determines how to 

proceed, if to proceed. The petitions are really 

what initiates or brings to the forefront the demand, 

if you will, on the Commonwealth if it should 

proceed. So Mr. Randall [the special prosecutor] is 

truly representing the Commonwealth and not the 

citizens [the petitioners]. 

Having concluded that the petitioners were not parties to 

the removal proceeding, we now address whether the petitioners 

– as non-parties – were subject to sanctions under Code § 8.01-

271.1. For the reasons stated below, we hold that Code § 8.01-

271.1 applies only to parties and their attorneys, and does not 

permit the imposition of sanctions against the petitioners 

because they were not “parties” to the removal action. 

 Code § 8.01-271.1 provides, in part, that the 

signature of an attorney or party constitutes a 

certificate by him that (i) he has read the pleading, 

11
motion, or other paper, (ii) to the best of his 

knowledge, information and belief, formed after 

reasonable inquiry, it is well grounded in fact and 

is warranted by existing law or a good faith argument 

for the extension, modification, or reversal of 

existing law, and (iii) it is not interposed for any 

improper purpose, such as to harass or to cause 

unnecessary delay or needless increase in the cost of 

litigation. 

(Emphasis added.) 

This Code section also places a similar duty upon “an 

attorney or party” making an oral motion. Id. The last 

paragraph in Code § 8.01-271.1 gives circuit courts the 

authority to impose sanctions for a violation of these duties: 

If a pleading, motion, or other paper is signed 

or made in violation of this rule, the court, upon 

motion or upon its own initiative, shall impose upon 

the person who signed the paper or made the motion, a 

represented party, or both, an appropriate sanction, 

which may include an order to pay to the other party 

or parties the amount of the reasonable expenses 

incurred because of the filing of the pleading, 

motion, or other paper or making of the motion, 

including a reasonable attorney’s fee. 

(Emphasis added.) 

The supervisors argue that the court had the authority to 

sanction the petitioners because the statute states that the 

court may sanction a “person who sign[s]” a paper in violation 

of the statute. According to the supervisors, the term 

“person” is broader than “attorney or party,” and as such, it 

includes non-parties – such as the petitioners - who submit 

12
papers with the court because they are “person[s] who signed” 

papers. We disagree. 

The first paragraph of Code § 8.01-271.1 provides that 

“[e]very pleading, written motion, and other paper” must be 

signed by either an attorney who represents a party or a party 

who is not represented by an attorney. As stated above, the 

second paragraph imposes a duty upon “an attorney or party” who 

signs a paper that is filed with the court. The fourth 

paragraph of Code § 8.01-271.1 provides the penalty for 

violation of the duties imposed by the statute. That paragraph 

provides that an appropriate sanction may be imposed upon “the 

person who signed the paper or made the motion, a represented 

party, or both.” Code § 8.01-271.1. This paragraph is 

referring to a violation of the duties that are imposed upon 

“attorney[s] or part[ies]” in the second and third paragraphs 

of the statute. As such, the term “person” refers only to an 

“attorney or party” that has a duty under Code § 8.01-271.1. 

See Andrews v. Ring, 266 Va. 311, 319, 585 S.E.2d 780, 784 

(2003) (“When general words and specific words are grouped 

together, the general words are limited and qualified by the 

specific words and will be construed to embrace only objects 

similar in nature to those objects identified by the specific 

words.”). Thus, under Code § 8.01-271.1, a court may only 

sanction an “attorney or party” who violates the duties imposed 

13
by the statute. Having concluded that the petitioners were not 

subject to sanctions under Code § 8.01-271.1, we hold that the 

circuit court erred in imposing sanctions against the 

petitioners because they were not parties in the removal 

action. 

III. CONCLUSION

For the reasons stated above, we will reverse the judgment 

of the circuit court imposing sanctions against the 

petitioners. Because of our decision on the two issues 

discussed, the remaining issues raised by the petitioners are 

rendered moot. 

Reversed and final judgment.

14