Keith Kessler v. Dennis Smith, Director, DMAS

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

KEITH KESSLER
OPINION BY
v. Record No. 2397-98-4 JUDGE CHARLES H. DUFF
DECEMBER 7, 1999
DENNIS SMITH, DIRECTOR,
DEPARTMENT OF MEDICAL
ASSISTANCE SERVICES

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge

Lewis E. Gelobter (Emily J. Kaufmann; Legal
Services of Northern Virginia, Inc., Public
Benefits Unit, on brief), for appellant.

Brian M. McCormick, Special Counsel for the
Department of Medical Assistance Services
(Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellee.

Keith Kessler (appellant) appeals the trial court's

decision dismissing his appeal of a decision of a hearing

officer for the Department of Medical Assistance Services

("DMAS"). Appellant contends the trial court erred in finding

that the appeal was not properly filed. We agree with

appellant, and we reverse and remand.

FACTS

Appellant filed an appeal with DMAS concerning services he

receives from that agency. On May 5, 1998, the hearing officer
issued a decision, and on May 26, 1998, appellant filed a notice

of appeal of that decision in the trial court. On June 25,

1998, appellant filed a petition for appeal. DMAS concedes the

notice of appeal and the petition for appeal were timely filed.

Also, on June 25, 1998, appellant's counsel faxed and mailed a

copy of the petition for appeal to the director of DMAS (the

"Director"), the named respondent in the appeal.

On July 1, 1998, the trial court entered an order granting

appellant permission to proceed in forma pauperis, thereby

waiving the requirements that appellant pay the fees for filing

the action and for service upon the Director. The Director

filed a motion to dismiss on July 15, 1998, contending

appellant's petition for appeal failed to conform to Rule 2A:4

because the petition was not served on the Director as mandated

by that rule. The Director contended that mailing the petition

to him was insufficient to perfect service in accordance with

the rules.

On August 21, 1998, the clerk of the circuit court issued a

subpoena in chancery for the Director. On August 28, 1998, the

trial court held a hearing on the Director's motion to dismiss.

The trial court dismissed the case "for failure to perfect the

appeal by a timely request for service on the Director as

required by Rule 2A:4(a)." An executed proof of service form

dated September 1, 1998 is in the record and is stamped as filed

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in the trial court's record on September 9, 1998. The form

indicates that the Director was served with the subpoena in

chancery and a copy of the petition on September 1, 1998.

ANALYSIS

Rule 2A:4(a) provides:

Within 30 days after the filing of the
notice of appeal, the appellant shall file
his petition for appeal with the clerk of
the circuit court named in the first notice
of appeal to be filed. Such filing shall
include all steps provided in Rules 2:2 and
2:3 to cause a copy of the petition to be
served (as in the case of a bill of
complaint in equity) on the agency secretary
and on every other party.

Thus, Rule 2A:4 required appellant to follow the steps

provided in Rules 2:2 and 2:3 in order to have the petition

served on the Director.

Rule 2:2 provides:

A suit in equity shall be commenced by
filing a bill of complaint in the clerk's
office. The suit is then instituted and
pending as to all parties defendant thereto.
The statutory writ tax and clerk's fees
shall be paid before the subpoena in
chancery is issued.
The bill shall be captioned with the
name of the court and the full style of the
suit. The requirements of Code § 8.01-290
may be met by giving the address or other
data after the name of each defendant.
It shall be sufficient for the prayer
of the bill to ask for the specific relief
sought, and to call for answer under oath if
desired. Without more it will be understood
that all the defendants mentioned in the
caption are made parties defendant and
required to answer the bill of complaint;

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 that proper process against them is
requested; that answers under oath are
waived, except when required by law; that
all proper references, inquiries, accounts
and decrees are sought; and that such other
and further and general relief as the nature
of the case may require and to equity may
seem meet is prayed for and may be granted.
No formal conclusion is necessary.

Appellant timely filed the petition for appeal as required

by Rule 2A:4(a). The petition contained a certificate of

service indicating the name and address of the Director and his

attorney. Relying on the language in the second sentence of the

last paragraph of Rule 2:2, "[w]ithout more it will be

understood that all the defendants mentioned in the caption are

made parties defendant and . . . that proper process against

them is requested," appellant contends that nothing more was

required of him in order to fulfill the requirements of the

rules and to perfect service on the Director. Appellant argues

that once the trial court entered the order granting him in

forma pauperis relief, the clerk of the circuit court should

have completed the necessary paperwork and forwarded the

documents to the sheriff for service.

However, the Director contends that, in accordance with

Rules 2:2 and 2:3, an appellant was required to request that the

clerk's office perfect service of the petition and to pay the

service fee. The Director asserts that, even though appellant

was proceeding in forma pauperis, he was nevertheless required

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to request service of process from the trial court clerk's

office, which appellant did not do until one month after the

trial court entered the July 1, 1998 in forma pauperis order and

after the Director filed the motion to dismiss.

Furthermore, the Director interprets Rule 2A:4(a) as

requiring compliance with Rules 2:2 and 2:3 within the

thirty-day time limit for filing a petition for appeal. In

other words, the Director contends that in order to have

perfected service of the petition on him, within thirty days of

filing the notice of appeal, appellant had to have requested the

clerk's office to perfect service on the Director. Moreover,

the Director argues that the phrase in Rule 2:2 "[w]ithout more

it will be understood . . . that proper service against them is

requested" means that, once service is requested, it is

requested against all of the named defendants. The Director

contends that the phrase does not mean that the clerk's office

will automatically issue process when a bill of complaint or

petition for appeal is filed.

We agree with appellant's interpretation of Rule 2:2.

"Where the language of a [rule] is clear and unambiguous,

we are bound by the plain statement of legislative intent."

Commonwealth v. Meadows, 17 Va. App. 624, 626, 440 S.E.2d 154,

155 (1994). "We must 'take the words as written . . . .'"

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White v. Commonwealth, 26 Va. App. 410, 412, 494 S.E.2d 896, 897

(1998) (citation omitted).

There are no ambiguities in the language of Rule 2:2. Rule

2:2 clearly states that once the bill of complaint is filed in

the clerk's office, the suit is then brought into existence and

is continuing as to all named defendants. The rule further

states: "Without more it will be understood that all the

defendants mentioned in the caption are made parties defendant

and required to answer the bill of complaint; that proper

process against them is requested . . . ." (Emphasis added.)

Thus, the rule clearly provides that once the bill of complaint

is filed, proper process "is requested" against the named

defendants. The rule does not require that a party, after

filing the bill of complaint, make a separate request for

service of process. Indeed, the rule specifically states that

nothing more than the filing of a bill of complaint is required

in order to request service of process. Therefore, appellant

complied with Rules 2:2 and 2A:4. Accordingly, the trial court

erred in dismissing appellant's appeal.

Furthermore, the trial court's clerk's office issued the

subpoena in chancery on August 21, 1998. "The process of the

courts in equity suits shall be a subpoena in chancery . . . ."

Rule 2:4. The record contains an executed proof of service form

indicating that the Director was served with the subpoena in

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chancery and a copy of the bill of complaint on September 1,

1998. Rule 2:4 provides, in pertinent part, that "[n]o decree

shall be entered against a defendant who was served with process

more than one year after the institution of the suit against

him . . . ." Because the suit was instituted on June 25, 1998,

the Director was clearly served less than one year after the

suit was instituted. Thus, the Director was properly served in

accordance with the rules, although service was perfected after

the trial court dismissed the case.

This case is distinguishable from Bendele v. Commonwealth,

29 Va. App. 395, 512 S.E.2d 827 (1999). The sole issue

presented in Bendele was whether "the trial court erred when it

held that mailing a copy of the petition for appeal to the

agency . . . satisf[ied] the notice requirements of the

Administrative Process Act." Id. at 396, 512 S.E.2d at 828. In

deciding that question we held as follows:

We conclude that the saving provisions
of Code § 8.01-288 do not apply when the
party mails a simple copy of the document to
the opposing party rather than follow the
requirements of Rule 2A:4. Because Code
§ 8.01-288 does not apply and because the
appellant concedes that she did not comply
with Rule 2A:4, the circuit court did not
have jurisdiction to hear this
administrative appeal.

Id. at 400, 512 S.E.2d at 829-30. Thus, we decide today an

issue not resolved by Bendele.

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 Because the trial court erred in dismissing appellant's

appeal, we reverse the decision and remand the case to the

circuit court for proceedings consistent with this opinion.

Reversed and remanded.

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