COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Clements
Argued at Alexandria, Virginia
JUDITH MARIE WATKINS
OPINION BY
v. Record No. 1938-03-4 JUDGE ROBERT J. HUMPHREYS
APRIL 13, 2004
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Todd G. Petit for appellant.
Donna R. Banks, Assistant County Attorney (David P. Bobzien,
County Attorney; Peter D. Andreoli, Deputy County Attorney;
Dennis R. Bates, Senior Assistant County Attorney, on brief), for
appellee.
Lisa K. Piper, Guardian ad litem for the minor children.
Judith Marie Watkins appeals decisions of the circuit court terminating her residual
parental rights to her two minor children. Watkins contends that the circuit court trial judge
erred in finding the evidence sufficient to support the termination pursuant to Code
§ 16.1-283(C)(2). Watkins also claims the trial judge erred in admitting the hearsay testimony of
a witness who testified during the termination proceedings. Because we find that Watkins failed
to properly perfect her appeal, we do not reach the merits of these issues and we dismiss her
appeal.
In her brief on appeal, the guardian ad litem for Watkins’s children raised an “Additional
Question Presented.” Specifically, and in that form, the guardian ad litem moves this Court to
dismiss Watkins’s appeal because Watkins failed to name the guardian ad litem as an appellee in
her notice of appeal. For the following reasons, we find that Watkins failed to properly and
timely note her appeal with respect to the guardian ad litem, an “indispensable party,” and we
dismiss the appeal.1
We first, briefly note the facts relevant to this narrow issue. Fairfax County Department
of Family Services placed Watkins’s two minor children in an “emergency foster home” in
December of 2001. In March of 2002, the Fairfax County Juvenile and Domestic Relations
District Court terminated Watkins’s residual parental rights. Watkins subsequently noted an
appeal for a trial de novo in the circuit court.
During the three-day hearing on Watkins’s de novo appeal, the appointed guardian ad
litem for Watkins’s children supported the Department’s petition to terminate Watkins’s residual
parental rights. Ultimately, the trial court ruled that Watkins had failed to substantially remedy
the “problems which brought the children into foster care,” within the requisite time period set
forth in Code § 16.1-283(C)(2), and that it was thus in the best interests of the children that
Watkins’s “parental rights be terminated.” Both final orders – one pertaining to each child –
were “[e]ntered on June 23, 2003.” The guardian ad litem endorsed the final termination orders
under the headings “I ask for this,” and indicated “Seen and Agreed” over her signatures.
Watkins noted her appeal to this Court on or about July 23, 2003. The record
demonstrates that Watkins failed to list the guardian ad litem as an opposing party in her Notice
of Appeal, as well as in her subsequent Amended Notice of Appeal. The record further shows
that Watkins failed to list the guardian ad litem in the accompanying certificates of service, and
there is no evidence that Watkins mailed or delivered a copy of the notices to the guardian ad
litem within 30 days after entry of the final orders. The record does reflect, however, that
1
For this reason, we do not consider Fairfax County Department of Social Services’s
“Motion of Appellee to Dismiss Petition [sic] For Appeal,” based upon Rules 5A:20 and 5A:18.
-2-
Watkins subsequently listed the guardian ad litem in the certificates of service appended to her
motion for extension of time to file the transcript, her statement of questions presented and
designation of contents to be included in the appendix, as well as her opening brief on appeal.
The guardian ad litem thus timely filed a brief on behalf of the children.2 In her brief, the
guardian ad litem requested that the appeal be dismissed because Watkins failed to notify her of
the appeal. Specifically, the guardian ad litem argues that this Court must dismiss Watkins’s
appeal because the guardian ad litem, an indispensable party, was not “list[ed]” in the notice of
appeal or the amended notice of appeal, and because Watkins failed to certify, in either
document, that a copy of the notice was “mailed or delivered to the guardian ad litem in
accordance with Rule 5A:6(d).”
Code § 17.1-408 states, “[a] notice of appeal to the Court of Appeals shall be filed in
every case within the court’s appellate jurisdiction as provided in § 8.01-675.3.” The notice of
appeal must be filed “with the clerk of the trial court,” Code § 17.1-407, and, “shall be filed
within 30 days from the date of any final judgment order, decree or conviction,” Code
§ 8.01-675.3. The “time[] prescribed for filing the notice of appeal . . . [is] mandatory,” Rule
5A:3(a), and, if not adhered to, “[n]o appeal shall be allowed,” Rule 5A:6. Rule 5A:16(a)
provides that appeals as a matter of right are “perfected by the timely filing of a notice of appeal
pursuant to Rule 5A:6.”
Rule 5A:6 specifically provides as follows, in pertinent part:
(a) Timeliness. — No appeal shall be allowed unless, within 30
days after entry of final judgment or other appealable order or
decree, counsel files with the clerk of the trial court a notice of
appeal, and at the same time mails or delivers a copy of such notice
to all opposing counsel and the clerk of the Court of Appeals. . . .
2
The guardian ad litem also appeared at oral argument and argued the merits of the
appeal on behalf of the children.
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* * * * * * *
(d) Certificate. — The appellant shall include with the notice of
appeal a certificate stating:
(1) the names and addresses of all appellants and appellees, the
names, addresses, and telephone numbers of counsel for each
party, and the address and telephone number of any party not
represented by counsel; and
(2) that a copy of the notice of appeal has been mailed or delivered
to all opposing counsel . . . .
The guardian ad litem correctly notes that we have held “in a suit involving a termination
of parental rights, a guardian ad litem for the child or children is an indispensable party to the
appeal and, thus, qualifies as an ‘opposing counsel’ under Rule 5A:6(a), to whom the appellant
has a duty to mail or deliver a copy of the notice of appeal.” M. G. v. Albemarle County Dep’t
of Soc. Servs., 41 Va. App. 170, 177, 583 S.E.2d 761, 764 (2003) (citing Hughes v. York County
Dep’t of Soc. Servs., 36 Va. App. 22, 25-26, 548 S.E.2d 237, 238-39 (2001)). Indeed, the
guardian ad litem is clearly an indispensable party in termination cases because the statute
governing the appointment of guardians ad litem in termination proceedings, Code § 16.1-266,
mandates their appointment in such cases.3
The Supreme Court of Virginia has used the terms “indispensable parties” and “necessary
parties” synonymously. See Asch v. Friends of Mt. Vernon Yacht Club, 251 Va. 89, 90-91, 465
3
Code § 16.1-266(A) provides as follows:
Prior to the hearing by the court of any case involving a child who
is alleged to be abused or neglected or who is the subject of an
entrustment agreement or a petition seeking termination of residual
parental rights or who is otherwise before the court pursuant to
subdivision A 4 of § 16.1-241 or § 63.2-1230, the court shall
appoint a discreet and competent attorney-at-law as guardian ad
litem to represent the child pursuant to § 16.1-266.1.
(Emphasis added).
-4-
S.E.2d 817, 818 (1996).4 In that context, the Court defines the term “necessary party” broadly,
holding that:
“‘Where an individual is in the actual enjoyment of the subject
matter, or has an interest in it, either in possession or expectancy,
which is likely either to be defeated or diminished by the plaintiff’s
claim, in such case he has an immediate interest in resisting the
demand, and all persons who have such immediate interests are
necessary parties to the suit.’”
Id. (quoting Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736
(1987) (quoting Gaddess v. Norris, 102 Va. 625, 630, 46 S.E. 905, 907 (1904))). Thus, the Court
has consistently held that “a court lacks the power to proceed with a suit unless all necessary
parties are properly before the court.” Id. at 91, 465 S.E.2d at 818. The import of this principle
is the fundamental notion that:
“‘[a necessary party’s] interests in the subject matter of the suit,
and in the relief sought, are so bound up with that of the other
parties, that their legal presence as parties to the proceeding is an
absolute necessity, without which the court cannot proceed. . . . .’”
Id. (quoting Bonsal v. Camp, 111 Va. 595, 597-98, 69 S.E. 978, 979 (1911) (quoting Barney v.
Baltimore City, 73 U.S. (6 Wall.) 280, 284 (1868)).
Thus, the question to be answered in the case at bar is whether a “necessary” or
“indispensable” party must explicitly be named in the notice of appeal to allow the appellate
court to “proceed.” Id. Based upon our review of the jurisprudence on this issue, we hold that
an indispensable party must be named in the notice of appeal in order to properly perfect the
appeal.
4
Black’s Law Dictionary, 1144 (7th ed. 1999) defines an “indispensable party” as “[a]
party who, having interests that would inevitably be affected by a court’s judgment, must be
included in the case.” (Emphasis added). It defines “necessary party” as “[a] party who, being
closely connected to a lawsuit, should be included in the case if feasible, but whose absence will
not require dismissal of the proceedings.” Id. at 1144-45 (emphasis added).
-5-
We first note the Supreme Court of Virginia has held that “[t]he mere fact that an
indispensable party who was a litigant in the trial court has notice that an appeal has been
perfected against another litigant is not sufficient to confer [an appellate court’s] jurisdiction
over the indispensable party against whom no appeal has been properly perfected.” Id. at 93,
465 S.E.2d at 819. The facts underlying the Asch decision reveal that the appellants’ notice of
appeal “informed all the litigants below, including the [indispensable party], ‘that the litigation
was not ended and that appeal was in progress.’” Id. at 90, 465 S.E.2d at 818.5 Yet, because the
appellants failed to “join” an indispensable party as a party in the appeal, the Court held that it
never acquired jurisdiction over the indispensable party and it therefore, dismissed the appeal.
Id. at 93, 465 S.E.2d at 819.
Similarly, in Vaughn v. Vaughn, 215 Va. 328, 210 S.E.2d 140 (1974), and Butler v.
Butler, 219 Va. 164, 247 S.E.2d 353 (1978) (per curiam), the Supreme Court of Virginia refused
to consider appeals where indispensable parties were not named in the notices of appeal, nor the
petitions for appeal. In Vaughn, the Court refused to hear an appeal involving a lawsuit
requesting specific performance of an option to buy a portion of a tract of land. Vaughn, 215 Va.
at 328, 210 S.E.2d at 141. The Court noted that when the bill of complaint was originally filed,
it named as parties-respondents “Carolyn F. Vaughn, Individually and as Administratrix of the
Estate of Donald W. Vaughn, Jr.” Id. By letter opinion, incorporating by reference the final
decree, the chancellor sustained respondents’ demurrer to the bill. Id. Vaughn was named both
individually and as administratrix of the estate in the caption of the letter opinion. Id. at 329, 210
5
Rule 5:9, governing appeals to the Supreme Court of Virginia, states that “[n]o appeal
shall be allowed unless, within 30 days after the entry of final judgment or other appealable order
or decree, counsel for the appellant files with the clerk of the trial court a notice of appeal and at
the same time mails or delivers a copy of such notice to all opposing counsel.” Rule 5:5(a)
provides that the times prescribed for filing various documents for purposes of appeal, including
the notice of appeal, “are mandatory.”
-6-
S.E.2d at 141-42. Thus, the letter opinion became binding upon Vaughn, individually, effective
with the entry of the final decree. Id. at 329, 210 S.E.2d at 142. Nevertheless, “in the captions
of the notice of appeal and assignments of error and the petition for appeal and supersedeas”
Vaughn was not named individually. Id. Moreover, “the notice of appeal and assignments of
error,” as well as the “notice certificate appended to the petition for appeal,” were addressed only
to “‘Thomas V. Monahan, Esquire, attorney for Carolyn F. Vaughn, Administratrix: of the Estate
of Donald W. Vaughn, Jr.’” Id. The Court thus held that:
[the] [n]otice of appeal and assignments of error must be filed
“within thirty days after entry of final judgment.” Rule 5:6
[Revised 1985]. That rule, like its predecessor, Rule 5:1, § 4, is
mandatory. Mears v. Mears, 206 Va. 444, 445, 143 S.E.2d 889,
890 (1965). Petitions for appeal must be presented within four
months following final judgment. Code 8-463 [now Code
§ 8.01-671]. That rule is jurisdictional. Tharp v. Commonwealth,
211 Va. 1, 175 S.E.2d 277 (1970). As to Carolyn F. Vaughn,
individually, appellants failed to comply with those rules. Carolyn
F. Vaughn, administratrix, is not a party-respondent in interest.
Id. at 329-30, 210 S.E.2d at 142. Accordingly, the court found that the appeal was not “perfected
according to law,” and it dismissed the appeal “as improvidently awarded.” Id. at 330, 210
S.E.2d at 142.
In Butler, the Court refused to hear an appeal pertaining to a garnishment proceeding.
Butler, 219 Va. at 165, 247 S.E.2d at 354. In the appeal, the appellant “did not name the United
States in her notice of appeal or serve a copy of her petition for appeal upon the United States.”
Id. at 166, 247 S.E.2d at 354. Finding that the United States was an indispensable party to the
garnishment proceedings, the Court dismissed the appeal, noting the United States was not
“before [the] Court and [their] mandate could not bind it, a reversal of the trial court’s order
would be advisory only, and ‘courts are not constituted . . . to render advisory opinions.’” Id. at
-7-
167, 247 S.E.2d at 355 (quoting City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773,
775-76 (1964)).
We have similarly held that an appeal must be dismissed where an appellant “ma[de] no
reference” to an indispensable party in its notice of appeal. Zion Church Designers & Builders v.
McDonald, 18 Va. App. 580, 582, 445 S.E.2d 704, 705 (1994). Zion involved an appeal from a
workers’ compensation commission award, pursuant to Rule 5A:11.6 In the proceedings before
the commission, the claimant, who was injured while working on a construction project at First
Church of the Nazarene (the Church), joined both the Church and Zion, the company the Church
had retained to coordinate and manage the construction project, as parties responsible for
payment of benefits. Id. Zion and the Church each denied liability, contending that the claimant
was the other’s employee. Id. The commission ultimately found that the claimant was Zion’s
employee and awarded the claimant temporary total disability benefits from Zion. Id.
Zion filed a timely notice of appeal with the clerk of the commission, naming the
claimant as appellee, but “making no reference to the Church.” Id. More than 30 days after the
6
Rule 5A:11 is a “special rule” applicable only to appeals from the workers’
compensation commission. Unlike Rule 5A:6, which does not set forth the required contents of
the notice of appeal, Rule 5A:11(b) specifically provides that
[n]o appeal from an order of the Commission shall be allowed
unless, within 30 days after entry of the order appealed
from . . . counsel files with the clerk of the Virginia Workers’
Compensation Commission a notice of appeal which shall state the
names and addresses of all appellants and appellees, the names,
addresses, and telephone numbers of counsel for each party, and
the address and telephone number of any party not represented by
counsel, and whether the appellant challenges the sufficiency of
the evidence to support the findings of the Commission.
(Emphasis added). Another interesting distinction between Rule 5A:6 and Rule 5A:11 is that
Rule 5A:6 contains a requirement that the parties, including all appellees, be named in the
attached certificate of service. Rule 5A:11 does not contain a specific reference to a certificate
of service, nor its required contents.
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entry of the award, Zion filed an “Addendum to Notice of Appeal” “adding” the Church as an
appellee. Id. Noting that “the [30-day] time requirement for the filing of a notice of appeal is
jurisdictional,” because it “forestalls the finality of the appealed adjudication, notifies the
appellee that he cannot rest on his victory, and initiates the time frame of the case in the Court of
Appeals,” we held that Zion’s failure to add the Church as an appellee until after the 30-day
filing period had expired amounted to Zion’s failure to “give timely notice of appeal with respect
to the Church.” Id. at 583, 445 S.E.2d at 705-06. We held that Zion’s failure in this regard
“render[ed] its initial notice of appeal ineffective and require[d] dismissal of the appeal.” Id. at
583, 445 S.E.2d at 706.
In so holding, we specifically noted that “Zion’s failure to name the [party] in its October
8 notice of appeal was not a mere failure to perform a directory act.” Id. at 583-84, 445 S.E.2d at
706 (citing Johnson v. City of Clifton Forge, 7 Va. App. 538, 375 S.E.2d 540 (1989) (holding
that the “filing” of a notice of appeal containing the names of the appellees and the names and
addresses of their counsel was “not defeat[ed],” although appellant failed to mail or deliver a
copy of the notice to the appellees during the 30-day filing period, because Rule 5A:1(b)(10) is
directory rather than mandatory),7 rev’d on other grounds, 9 Va. App. 376, 388 S.E.2d 654
(1990)). “Neither was it a mere error of internal reference.” Id. (citing Carlton v. Paxton, 14
Va. App. 105, 415 S.E.2d 600 (1992) (holding that the court acquired jurisdiction over appeal
where notice of appeal was timely filed and properly styled to appeal May 11, 1990 adoption
order but erroneously referred to order being appealed as one entered on April 22, 1986), aff’d en
banc, 15 Va. App. 265, 422 S.E.2d 423 (1992)). “Rather, it was a failure to comply with a
7
Rule 5A:1(b)(10) defines “File with the clerk” as “deliver[ing] to the clerk specified a
paper, a copy of which has been mailed or delivered to opposing counsel, and appended to which
is either acceptance of service or a certificate showing the date of mailing or delivery.”
-9-
requirement made mandatory by both statute and rule.” Id.; cf. Grief Companies v. Hensley, 22
Va. App. 546, 471 S.E.2d 803 (1996) (holding appeal properly perfected where indispensable
party was named in the notice of appeal, but named as an appellant, not as an appellee, and was
“presently before [the] Court”); State Water Control Board v. Crutchfield, 265 Va. 416, 424 n.2,
578 S.E.2d 762, 766 n.2 (2003) (holding that a circuit court could properly amend a petition for
appeal, under Rule 2A:4, to add an indispensable party after the relevant 30-day time limitation
had expired, but explicitly declining to “address any other requirements of Rule 2A:2” pertaining
to the petitioners’ notice of appeal, because the parties did not challenge petitioners’ compliance
with that Rule).8
Consistent with this line of precedent, we find that an appellant’s failure to name the
guardian ad litem, an indispensable party, in either a notice of appeal or an accompanying
certificate of service, renders this Court powerless to exercise jurisdiction over that indispensable
party. This finding is consistent with the “purpose behind rules governing a notice of appeal.”
Carlton, 14 Va. App. at 110, 415 S.E.2d at 602.
As the Supreme Court of Virginia has made plain, these rules have
been designed to protect the appellee, not to penalize the appellant.
See Avery v. County School Board, 192 Va. 329, 333, 64 S.E.2d
767, 770 (1951). If required papers are not timely filed, “the
appellee is entitled to assume that the litigation is ended . . . .
Litigation is a serious and harassing matter, and the right to know
when it is ended is a valuable right.” Id.
Id. In an appeal of right, the appeal is “perfected” by the timely filing of a notice of appeal. See
Rule 5A:16(a). Thus, the notice of appeal, when filed, effectively transfers jurisdiction from the
lower court to the appellate court and places the named parties within the jurisdiction of the
8
Rules 2A:2 and 2A:4 govern appeals pursuant to the Administrative Process Act. Rule
2A:2 requires the notice of appeal to include, among other things, “the names and addresses of
the appellant and of all other parties and their counsel.”
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appellate court. See Devondale v. Stallings, 795 S.W.2d 954 (Ky 1990); see also Coleman v.
Thompson, 501 U.S. 722, 742-43, 751 (1991) (describing Supreme Court of Virginia Rules
5:5(a) and 5:9, stating “the notice of appeal is a document filed with the trial court that notifies
that court and the [appellate court], as well as the parties, that there will be an appeal; it is a
purely ministerial document,” and the purpose of the 30-day limit in Rule 5:5(a) “‘“is to set a
definite point of time when litigation should be at an end, unless within that time the prescribed
application has been made; and if it has not been, to advise prospective appellees that they are
freed of the appellant’s demands”’” (quoting Browder v. Director, Illinois Dept. of Corr., 434
U.S. 257 (1978) (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412 (1943)) (second
emphasis added)). It thus stands to reason that a notice of appeal that entirely omits an
indispensable party fails to transfer jurisdiction over that party to the appellate court and thus
fails to comport with the “purpose behind rules governing a notice of appeal.” Carlton, 14
Va. App. at 110, 415 S.E.2d at 602. In particular, it fails to comport with the rule making the
filing of such notices mandatory. Rule 5A:3.9
Our holding today is not inconsistent with our decision in Hughes, nor is it inconsistent
with our holding in M.G. In Hughes, where we first declared “the guardian ad litem representing
the interests of the children is an indispensable party to the appeal of the final decree”
terminating parental rights, 36 Va. App. at 26, 548 S.E.2d at 238, we held that
where the certificate accompanying the notice of appeal does not
list the name and address of the guardian ad litem and “[t]he record
reflects that [the] appellant failed to provide the guardian ad litem
with the notice of appeal or the opening brief[,] [t]he guardian ad
9
Indeed, under such circumstances, it is logical to presume that the unnamed party would
suffer prejudice. The clerk of the Court of Appeals would have no reason to notify the party of
the date of the filing of the record, Rule 5A:10, from which date an appeal in this Court is
considered “mature” for “purposes of further proceedings” in the appellate process, Rule
5A:16(a).
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litem was not . . . made a party to the appeal,” and the appeal must
be dismissed.
M.G., 41 Va. App. at 177, 583 S.E.2d at 764 (quoting Hughes, 36 Va. App. at 25-26, 548 S.E.2d
at 238-39). We did not hold in Hughes that a party who entirely omits an indispensable party
from his or her notice of appeal or accompanying certificate of service, and fails to cure that
defect within the mandatory 30-day filing period, may correct that omission by subsequently
providing the indispensable party with a copy of the defective notice and certificate of service, or
by providing the indispensable party with a copy of the opening brief.10 Indeed, notice, in and of
itself that an appeal has been taken is insufficient to confer an appellate court with “jurisdiction
over the indispensable party against whom no appeal has been properly perfected.” Asch, 251
Va. at 93, 465 S.E.2d at 819.
In M.G., we held that “we have jurisdiction over both the appeal itself and the guardian
ad litem, an indispensable party, as long as the record establishes that, ‘within 30 days after
entry of final judgment or other appealable order or decree, counsel file[d] with the clerk of the
trial court a notice of appeal, and at the same time mail[ed] or deliver[ed] a copy of such notice
to all opposing counsel . . . .’” 41 Va. App. at 178, 583 S.E.2d at 764-65 (quoting Rule 5A:6(a))
(emphasis added).
Although the facts in M.G. reveal that M.G. failed to name the children’s guardian ad
litem in either the notice of appeal or the accompanying certificate, the facts also reveal that
M.G. did indicate in the certificate accompanying the notice that “[a] guardian ad litem [had
been] appointed for the children.” Id. at 175, 583 S.E.2d at 763. Moreover, the issue in that case
10
The observation in Hughes that the opening brief was not served on the guardian ad
litem is dicta in the purest sense because the sole issue was whether the guardian ad litem was an
indispensable party who must be notified to perfect an appeal. The issue was not what might
constitute a legally sufficient mechanism for doing so.
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was not whether the Court lacked jurisdiction over the guardian ad litem because M.G. failed to
name the guardian ad litem in either her notice of appeal or accompanying certificate. Instead,
the issue raised was whether M.G. “‘fail[ed] to join the children’s guardian ad litem as a party to
the case’ because she failed to certify in her notice of appeal that she mailed or delivered a copy
of the notice to all opposing counsel, i.e., the children’s guardian ad litem.” Id. at 176, 583
S.E.2d at 763-64.
Noting that “[w]e have never held . . . Rule 5A:6(d)’s provisions regarding the contents
of the accompanying certificate are jurisdictional,” we refused to dismiss the appeal because the
record reflected that M.G. had mailed a copy of the notice of appeal to the guardian ad litem
“within 30 days after entry of final judgment.” Id. at 177-78, 583 S.E.2d at 764.11 We do not
disturb the holding in M.G. Indeed, we have never held the contents of the certificate of service,
accompanying the notice of appeal, are “jurisdictional” as that term has been used, often
inartfully, in our jurisprudence.12 Nevertheless, as noted above, both the Supreme Court of
Virginia and this Court have held that in order to properly “perfect” an appeal, all the
indispensable parties must be named, in either the notice of appeal or the accompanying
11
Specifically, the record revealed that the notice of appeal and accompanying certificate
were mailed with a cover letter attached. M.G., 41 Va. App. at 178, 583 S.E.2d at 765. The
cover letter indicated that a courtesy copy of the notice of appeal had been mailed to the guardian
ad litem upon filing. Id.
12
In David Moore v. Commonwealth, 259 Va. 431, 527 S.E.2d 406 (2000), overruled in
part by, Nelson v. Warden of the Keen Mt. Corr. Ctr., 262 Va. 276, 552 S.E.2d 731 (2001), the
Supreme Court of Virginia explained the significant distinction between a court’s “subject matter
jurisdiction” and its ability to “exercise” that jurisdiction. 259 Va. at 437, 527 S.E.2d at 409
(“emphasizing the necessary distinction to be drawn . . . between the power of a court to
adjudicate a specified class of cases, commonly known as ‘subject matter jurisdiction,’ and the
authority of a court to exercise that power in a particular case”). Nevertheless, the term
“jurisdiction” has been loosely used by the Commonwealth’s appellate courts to encompass
under one “shorthand” term, the concept of subject matter jurisdiction and the legally distinct but
related concept at issue here, the ability of a court to exercise its jurisdiction.
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certificate, thereby joining those parties in the appeal and giving the appellate court the requisite
jurisdiction over those parties. See Asch, 251 Va. at 93, 465 S.E.2d at 819; see also Vaughn, 215
Va. at 330, 210 S.E.2d at 142 (finding the appeal was not “perfected according to law”). This
requirement clearly must be satisfied within the 30-day “mandatory” filing period. Rules 5A:3;
5A:16. Otherwise, the notice is “ineffective” and the appeal is never properly perfected. Zion,
18 Va. App. at 583, 445 S.E.2d at 706; Vaughn, 215 Va. at 330, 210 S.E.2d at 142. In sum,
notwithstanding the fact that this Court possesses jurisdiction over the subject matter of the
appeal, the failure to file a notice of appeal in compliance with this mandate, within the requisite
30-day period, necessarily affects this Court’s authority to exercise that jurisdiction.
In the case at bar, this requirement was clearly not satisfied. Specifically, because Watkins
failed to name an indispensable party in her notice of appeal or accompanying certificate of service
within the 30-day mandatory filing period, this Court never obtained jurisdiction over the person of
that party during that time period. Watkins, thus, failed to properly perfect her appeal within the
mandatory 30-day time limitation. See Rule 5A:3(a); Rule 5A:6; Asch, 251 Va. at 91, 465 S.E.2d
at 818 (noting that a court lacks the power to proceed with a suit unless all necessary parties are
properly before the court).
Because the time requirement for filing a notice of appeal, in accord with Rule 5A:6, is
mandatory, we find that we must dismiss Watkins’s appeal. See Rule 5A:3. Watkins’s failure to
timely file a notice of appeal, in compliance with the most basic of our rules, renders her notice,
and thus her attempt to properly perfect her appeal, ineffective. Zion, 18 Va. App. at 583, 445
S.E.2d at 706; see also Williams v. Landon, 1 Va. App. 206, 207, 336 S.E.2d 907, 907 (1985).13
13
For these reasons, we do not consider the issue in the case at bar to be one of
“process,” requiring us to consider whether the guardian ad litem has “generally appeared” and
thus submitted herself to our jurisdiction. See Code § 8.01-277 (“A person, upon whom process
to answer any action has been served, may take advantage of any defect in the issuance, service
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Because the guardian ad litem raised a proper and timely objection to Watkins’s failure in this
regard, we find that we must dismiss Watkins’s appeal. See Morrison v. Bestler, 239 Va. 166,
170, 387 S.E.2d 753, 756 (1990) (noting that the lack of subject matter jurisdiction can be raised
at any time in the proceedings, but defects in the other “jurisdictional” elements generally will be
considered waived unless properly raised in conjunction with the relevant proceedings).14
Dismissed.
or return thereof by a motion to quash filed prior to or simultaneously with the filing of any
pleading to the merits.”); Gilpin v. Joyce, 257 Va. 579, 581, 515 S.E.2d 124, 125 (1999) (stating
that “[a] general appearance ‘is a waiver of process, equivalent to personal service of process,
and confers jurisdiction of the person on the court,’” and noting that Code § 8.01-277, allowing a
party to appear generally and at the same time to contest process, applies only to those who have
actually been “served” with process (quoting Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757,
759 (1951))).
14
We note further that, although the guardian ad litem filed a brief on the merits and
argued the merits of the appeal during oral argument, the guardian ad litem here never sought
leave to intervene in this appeal, and in fact objected to this Court’s consideration of Watkins’s
appeal on the merits. Cf. Browning-Ferris Ind. v. Residents Involved, 254 Va. 278, 283, 492
S.E.2d 431, 434 (1997) (declining to take “action” on the merits of a circuit court’s denial of a
motion to dismiss, because the necessary party that appellant failed to “nam[e]” in its notice of
appeal from a decision of the Department of Environmental Quality to the circuit court (pursuant
to Rule 2A:2) subsequently, and with leave granted by the circuit court, intervened in the
proceedings).
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