COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Benton and Petty Argued at Richmond, Virginia

DEBORAH Y. LANGE MEMORANDUM OPINION * BY v. Record No. 2547-06-2 JUDGE WILLIAM G. PETTY MAY 1, 2007 AUGUST F. LANGE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow, Judge Bruce E. Arkema (Cantor Arke ma, on brief), for appellant. Richard L. Locke (Robert W. Partin; Shannon S. Otto; Locke & Partin, on brief), for appellee.

Appellant Deborah Y. Lange (w ife) appeals the trial court’s judgment denying her motion to enforce an offer made by August F. Lange, Jr. (husband) concerning the division of the parties’ real property. While wife raises substantive issues on appeal, we need not decide them in this opinion. Instead, we dismiss wife’s appeal as moot for th e reasons stated below an d grant husban d’s request for attorney’s fees and costs associated with this appeal.
I. B ACKGROUND On appeal, we view the evidence in the light most favorable to husband, the party prevailing below. Petry v. Petry , 41 Va. App. 782, 785-86, 589 S.E.2d 458, 460 (2003). On May 19, 2005, husband filed for divorce. Althou gh the parties had en tered a pre-marital agreement, the settlement of the parties’ prope rty was acrimonious. One of the contested matters

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this case, a nd because this memorandum opinion carries no precedential value, this opinion r ecites only those facts and incidents of the proceedings as are necessary to the parties’ und erstanding of the disposition of this appeal.- 2 - involved two pieces of jointly title d real estate, in which the part ies had a combined total equity of $454,000. On March 7, 2006, during the course of negotiations, husband’s counsel faxed a letter to wife’s counsel, offeri ng two possible solutions to the on- going dispute regarding the real estate. The proposal read: Option One: Your client will receive $450,000 within 30 days, and she will transfer interest in both pieces of real estate to [husband]. Each party will keep all other property tangible and intangible currently in their pos session and individual accounts. A mutual waiver will be signed wh ich will include a waiver by Wife for any potential claims against [ husband’s real estate company]. * * * * * * * Option Two: Husband keeps [one property] and Wife keeps [the other property]. Wife will pay Hu sband $144,000 wi thin 30 days. Same waivers as above. The letter went on to explain that the amounts offered were based on the parties’ eq uity in the two properties. Wife’s counsel responded the sa me day, accepting the first op tion. On March 8, husband’s counsel responded to wife’s letter of acceptance as follows: As you undoubtedly know, there were two typographical errors in my letter to you of yest erday. The total equity in the two properties is $454,000. Under Optio n One, your client would receive one-half of $454,000, or $227,000. Under Option Two, your client would owe Mr. Lange $144,000. Your letter . . . was receive d, but is obviously based on the typographical error, and is of no consequence. Several months after this exchange, on June 19, 2006, wife filed a motion seeking to enforce the alleged property settlement invo lving the $450,000 payment. Following a hearing, the trial court ruled on July 10, 2006, that the alleged settlement was not enforceable because it was neither in writing nor signed by the parties, a nd thus failed to meet the requirements of Code § 20-155.- 3 - On July 20, 2006, the parties entered into another agreement, disposing of their interests in the two pieces of real property. According to that agreement, which was signed by the parties, husband received one of the disputed propertie s and paid wife $57,000 for her interest in the property. The parties agreed to sell the other di sputed property and evenly divide the proceeds. The July 20 agreement also included a statement th at the parties had not “a greed to or settled” wife’s “right to appeal the [t rial court’s] decision regarding an alleged agreement between the parties.” The trial court entered a final di vorce decree in this matter on September 19, 2006, noting that the parties’ July 20 agreement “co mpletely adjusts and settles all outstanding property rights . . . .” The divorce decree “affirmed, ratified and incorporated” the July 20 agreement. II. A NALYSIS Wife asks this Court to reverse the tria l court’s July 10, 2006 ruling and enter a final judgment enforcing the March 2006 “settlement agr eement.” She contends that a controversy still exists in this ca se because the March 2006 offer involved not only the transfer of the real property, but also a waiver of a ny of wife’s claims against husba nd’s real estate company. Wife reasons that the additional consid eration of the waiver of claims – and the larger cash payment husband was allegedly willing to pay for the waiver – creates an issue separate from that of the settlement of the parties’ real estate interests. 1 We have determined, however, that whether the waiver of claims constituted addi tional consideration is irrelevant in this ca se, given the parties’ decision to enter into a subsequent agreem ent disposing of the real property.

1 We note that the waiver of claims applied to options one and two; thus, it likely bore no relationship to the larger amount of option one.- 4 - It is apparent on this reco rd that no actual controversy currently exists and that the parties’ rights as to the dis puted real properties were resolv ed in the subsequent, July 20 settlement agreement. This Court does “not sit to give opinions on moot questions or abstract matters, but only to decide actual controversies in juriously affecting the rights of some party to the litigation.” Hallmark v. Jones , 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967). “[A] case is moot when the issues presented are no longer ‘live.’” Powell v. McCormack , 395 U.S. 486, 496 (1969). Instead, “an actual controversy must be extant at all stages of review,” to escape th e notion that a case is moot. Preiser v. Newkirk , 422 U.S. 395, 401 (1975). Our Supreme Court has long held that the proper remedy “where there is no actual contro versy, involving real a nd substantial rights, between the parties to the record ” is that the case “be dismisse d [as moot].” Thomas, Andrews
& Co. v. Norton , 110 Va. 147, 148, 65 S.E. 466, 467 (1909). The primary purpose of husband’s March 2006 settlement proposal was to divide the parties’ interest in the two pa rcels of real property. That sa me division, albeit under somewhat different terms, was mutually ag reed upon in the July 20 settleme nt agreement, after the trial court determined that the March 2006 proposal di d not constitute an enforceable agreement. Therefore, the parties’ July 20 agreement resolv ed the same dispute addressed in the March 2006 proposal. Further, after wife disposed of her interest in the real property pursuant to the July 20 agreement, she was no longer able to perfor m her obligation under the March 7 proposal. Simply put, she could not transfer her property interest to husband as discussed in the March 2006 proposal because her interest no longer existed. See Gaynor v. Hird , 11 Va. App. 588, 400 S.E.2d 788 (1991) (citing Hale v. Wilkinson , 62 Va. (21 Gratt.) 75, 80 (1871)) (repeating the well-settled principle that each parc el of real estate is unique).- 5 - Thus, even were we to grant wife the relief she seeks, the agreem ent she asked the trial court to enforce is impossible to fulfill because of the July 20 settlement. Based on these facts, we conclude that husband and wife settled the dispute over the real pr operty in their July 20, 2006 agreement and that there is no justicia ble dispute remaining in this case. See Commonwealth ex rel. State Water C ontrol Bd. v. Appalachian Power Co. , 12 Va. App. 73, 77, 402 S.E.2d 703, 706 (1991) (Benton, J., dissenting) (“A case is moot when, upon the termination of the circumstances out of which a controversy arose . . . an adjudication upon the merits could serve no useful purpose beyond the gr atification of a litigious part y’s will to win.” (internal quotation marks and citation omitted)). Finally, we are not persuaded by wife’s contention that this Court should adjudicate this claim, regardless of these facts, based on the stat ement in the July 20 agr eement that the parties had not settled wife’s right to appeal this issu e. There are only two exceptions to the mootness doctrine. First, cases capable of repetition, yet ev ading review remain justiciable. In re TimesWorld Corp. , 7 Va. App. 317, 323, 373 S.E.2d 474, 477 (1988). Second, cases involving voluntary cessation of allegedly illegal activity are not moot. City of Virginia Beach v. Brown , 858 F. Supp. 585 (E.D. Va. 1994). The situation before this Court does not give rise to either of these exceptions. Wife did not cite, nor were we able to find, any precedent supporting the notion that parties could somehow bind an appellate court to render an advisory opinion. Rather, our precedent and that of our Supreme Court is unanimous in stating that “‘[t]he duty of this court as of every other judicial tribunal, is to decide actual controve rsies by a judgment which can be carried into effect, and not to gi ve opinions upon moot questions or abstract propositions . . . .’” Jackson v. Marshall , 19 Va. App. 628, 635, 454 S.E.2d 23, 27 (1995) (quoting Potts v. Mathieson Alkali Works , 165 Va. 196, 225, 181 S.E. 521, 533 (1935)). Moreover, even when- 6 - the parties do not raise the i ssue of mootness, appellate co urts should raise the issue sua sponte when the record does not present a live cas e or controversy. Baldwin v. Commonwealth , 43 Va. App. 415, 421-22, 598 S.E.2d 754, 757 (2004).
III. C ONCLUSION For the foregoing reasons, we dismiss this appeal as moot. Because wife’s appeal is without merit, we grant husband’s request for attorney’s fees an d remand this case to the trial court for a determination of attorney’s fees and costs related to this appeal. See O’Loughlin v. O’Loughlin , 23 Va. App. 690, 479 S.E.2d 98 (1996). Dismissed and remanded.