COURT OF APPEALS OF VIRGINIA

Present: Chief Judge F itzpatrick, Judge Kelsey and Retired Judge Stephens * Argued at Richmond, Virginia

ALLIANCE TO SAVE THE MATTAPONI, CHESAPEAKE BAY FOUNDATION, INC., MATTAPONI AND PAMUNKEY RIVERS ASSOCIATION, SIERRA CLUB, PAULE TTE P. BERBERICH, WARREN MOUNTCASTLE, ROSE MARY ZELLNER AND RAY WATSON OPINION BY v. Record No. 2700-03-1 JUDGE D. ARTHUR KELSEY AUGUST 31, 2004 VIRGINIA MARINE RE SOURCES COMMISSION AND THE CITY OF NEWPORT NEWS

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Marc Jacobson, Judge Deborah M. Murray (Southern Environmental Law Center, on briefs), for appellants. John K. Byrum Jr., Assistant At torney General (Jerry W. Kilgore, Attorney General; Roger L. Cha ffe, Senior Assistant Attorney General; Carl Josephson, Assistant Attorney General, on brief), for appellee Virginia Marine Resources Commission. George A. Somerville (James E. Ryan, Jr.; M. Scott Hart; Stuart E. Katz, City Attorney; Allen L. Ja ckson, Chief Deputy City Attorney; Troutman Sanders LLP, on brief), for appe llee City of Newport News. The City of Newport News filed a circuit c ourt appeal under the Virginia Administrative Process Act (VAPA), Code § 2.2-4000 et seq. challenging a decision of the Virginia Marine Resources Commission (VMRC). Alliance To Save The Mattaponi, et al. sought to intervene in the VAPA circuit court case. On September 25, 2003, the circuit court denied the motion to

* Retired Judge J. Warren Stephens took part in the consideration of this case by designation pursuant to Code § 17.1-400.- 2 - intervene. Alliance f iled a notice of appeal on October 20, 2003, which we recorded as Record

No. 2700-03-1. On December 19, 2003, we directed the partie s to file briefs addressing the question whether Code § 17.1-405(4) authorizes this Cour t to exercise appellat e jurisdiction over the circuit court’s order denying intervention. Having reviewed the briefs and heard oral argument,

we hold that the circuit court’s order was not fi nal and falls outside our interlocutory appellate jurisdiction under Code § 17.1-405(4). See generally Thrasher v. Lustig , 204 Va. 399, 403, 131 S.E.2d 286, 289 (1963) (noting that “as a general rule interlocutory decrees or orders overruling motions as to joinder of parties, or a subs titution of parties, ar e not appealable”); cf. Stringfellow v. Concerned Neighbors in Action , 480 U.S. 370 (1987) (holding th at denial of permissive intervention cannot be subject to interlocutory appeal); Ba gwell v. United Mine Workers , 244 Va. 463, 474, 423 S.E.2d 349, 356 (1992), rev’d on other grounds , 512 U.S. 821 (1994) (holding that an “order denying intervention was not a final, appealable orde r because it did not dispose of the whole subject matter of the cas e,” and thus, the denial order motion can be challenged in an appeal of the final order). 1

1 We disagree that Jones v. Rhea , 130 Va. 345, 369, 107 S.E. 814, 822 (1921), concludes otherwise. In that case, the Vi rginia Supreme Court held that it had appellate jurisdiction over an interlocutory order denying interv ention under a statute authorizing appeal of “any” order of the State Corporation Commission. Id. The statute did “not us e the word ‘final.’” Id. Though we acknowledge the remark in Jones along the lines that the denial order was “final” as to the intervenors, we reje ct it as non-binding dicta . See generally Newman v. Newman , 42 Va. App. 557, 566, 593 S.E.2d 533, 538 (2004) ( en banc ) (“ Dicta cannot ‘serve as a source of binding authority in American jurisprudence.’” (citation omitted)). Cf. Richmond, Fredericksburg and Potomac R.R. Co. v. Johnson , 99 Va. 282, 284, 38 S.E. 195, 195 (1901) (referring to Jeter v. Board , 68 (27 Gratt.) Va. 910, 1876 Va. LEXIS 82 (1876) , the only citation relied upon in Jones for its dicta , the Supreme Court stated: “In that case, however, the court was dealing with a final order, and a glance at the opini on is sufficient to show that the language used by the learned judge was obiter , and it has been so held by th is court in Tucker v. Sandridge , 82 Va. 532.”).- 3 - In their briefs, the parties a dvise that the underl ying VAPA circuit court action has been settled by Newport News and the VMRC. Based upon that settlement, the ci rcuit court entered a “Final Decree” remanding the matter back to th e VMRC for further proceedings and dismissing “with prejudice” the VAPA proceeding commenced by Newport News. Alliance contends the entry of the Final Decree “may render moot this Court’s question regard ing its jurisdiction over the Alliance’s appeal.” This observation

⎯ however valid with respect to an appeal filed after the entry of a final judgment 2

⎯ is not valid with respect to a previously filed appeal of an interlocutory order. Under settled appellate practice, a notice of appeal of an inte rlocutory order must rise or fall based upon the Court’s authority under Code § 17.1-405(4). Rule 5A:6(a) provides that no appeal “shall be allowed” unless a notice of ap peal has been filed with in 30 days “after” the appealable order. We have recognized an excepti on to this rule in cases where the appellant files the notice of appeal after the pronouncement of judgment, but befo re the formal entry of the judgment order. See Saunders v. Commonwealth , 12 Va. App. 154, 155, 402 S.E.2d 708, 709 (1991). But we have never suspended the timi ng requirement altogeth er to resurrect an

otherwise unsuccessful inte rlocutory appeal. See generally FirsTier Mortgage Co. v. Investors Mortgage Ins. Co. , 498 U.S. 269, 276 (1991). For these reasons, we dismiss without pr ejudice Record No. 2700-03-1 as outside our interlocutory appellate jurisd iction under Code § 17.1-405(4). Dismissed without prejudice

.

2 See Smith v. Woodlawn Constr. Co. , 235 Va. 424, 429, 368 S.E.2d 699, 702 (1988) (recognizing the general rule that an “adverse in terlocutory adjudication may be the subject of appeal from the fi nal adjudication”).