COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia
BURTON O. SOURS, JR.,
FAIRFAX COUNTY SURVEYOR
OPINION BY
v. Record No. 1716-98-4 JUDGE LARRY G. ELDER
JULY 27, 1999
VIRGINIA BOARD FOR ARCHITECTS,
PROFESSIONAL ENGINEERS, LAND
SURVEYORS AND LANDSCAPE ARCHITECTS,
AND HAROLD A. LOGAN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Karen J. Harwood, Deputy County Attorney
(David P. Bobzien, County Attorney; Jan L.
Brodie, Senior Assistant County Attorney, on
briefs), for appellant.
William A. Diamond, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General, on brief), for appellee Virginia
Board for Architects, Professional
Engineers, Land Surveyors and Landscape
Architects.
No brief or argument for appellee Harold A.
Logan.
Burton O. Sours, Jr., (appellant) appeals from a ruling of
the Fairfax County Circuit Court dismissing his appeal from a
decision issued by the Virginia Board for Architects,
Professional Engineers, Land Surveyors and Landscape Architects
(the Board) under the Virginia Administrative Process Act
(VAPA), Code §§ 9-6.14:1 through 9-6.14:25. On appeal, he
contends the circuit court (1) erred in holding that timely
payment of the statutory writ tax and clerk’s fees is
jurisdictional; (2) erred in holding that Rule 1:9 of the Rules
of the Supreme Court does not apply to actions filed pursuant to
Part Two A of the Rules; and (3) abused its discretion in
denying his request for leave to pay the writ tax and clerk’s
fees. For the reasons that follow, we reverse the ruling of the
circuit court and remand for further proceedings.
I.
FACTS
Harold A. Logan, a licensed land surveyor, filed a
complaint with the Commonwealth’s Department of Professional and
Occupational Regulation (the Department), alleging that
appellant violated various sections of the Virginia Code by
altering subdivision plans prepared by Logan. Appellant, the
Fairfax County Surveyor, took the position that his alteration
of Logan’s plans occurred in the course of his duties as the
County Surveyor and did not violate the Code. Following an
investigation and informal fact-finding conference pursuant to
the VAPA, Code § 9-6.14:11, the Board concluded that appellant
“utilized the work of another professional without the
professional’s consent” and issued an order to that effect on
January 5, 1998. Although appellant was represented in those
proceedings by the County Attorney’s office, the Board’s order
was against appellant alone.
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Appellant timely filed his notice of appeal on February 5,
1998, and timely filed his petition for appeal on March 9, 1998.
The petition listed appellant as “BURTON O. SOURS, JR., Fairfax
County Surveyor,” and was signed by the County Attorney. The
clerk’s office charged no filing fee. The petition for appeal
was served on Logan on April 3, 1998, and on the Board on
April 6, 1998.
The Board moved to dismiss the petition on the ground that
the petition for appeal was not timely filed because appellant
did not pay the statutory writ tax and clerk’s fees. It posited
that the clerk filing the petition did not collect the tax and
fees because the County Attorney was representing appellant.
The Board contended, however, that the proceedings were against
appellant in his individual capacity as a licensed surveyor and
were independent of his employment with the county and that, as
a consequence, the tax and fees were due.
Appellant argued that the actions for which he was
sanctioned were performed in the course of his duties as the
County Surveyor and that the clerk acted properly in not
requiring him to pay the writ tax and clerk’s fees.
Alternatively, he argued that Rules 2:2 and 2A:4 do not require
that the tax and fees be paid within the thirty-day appeal
period and that Rule 1:9 gave the circuit court discretion to
permit payment of the tax and fees beyond the thirty-day period.
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The circuit court rejected appellant’s argument that he was
not required to pay the writ tax and clerk’s fees and held that
their timely payment was a necessary condition to the perfection
of his appeal. Appellant moved the court to exercise its
discretion under Rule 1:9 to permit payment of the tax and fees
at that time. In a hearing on the motion, the circuit court
said that “if 1:9 controls, I would readily grant this motion.”
It ultimately denied the motion on the ground that “[i]t is
mandatory to file the fee.”
Appellant noted his appeal to this Court. He has not
appealed the circuit court’s ruling that he was statutorily
required to pay the writ tax and clerk’s fees.
II.
ANALYSIS
Part Two A of the Rules of the Supreme Court governs the
appeal from a case decision of an agency pursuant to the VAPA.
Rule 2A:4 provides, in relevant part, as follows:
(a) 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.
The thirty-day period in which to file a petition for appeal of
an agency case decision is mandatory, as indicated by the
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General Assembly’s use of the word, “‘shall.’” Mayo v.
Department of Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761
(1987). “‘The purpose of the specific time limit is not to
penalize the appellant but to protect the appellee. If the
required papers are not [timely] filed, the appellee is entitled
to assume that the litigation is ended, and to act on that
assumption.’” Id. (quoting Avery v. County Sch. Bd., 192 Va.
329, 333, 64 S.E.2d 767, 770 (1951)). Furthermore, “[t]he
absence of an express provision in Part Two A of the Rules
empowering the circuit court to extend the time limits
prescribed in Rule 2A:4 is persuasive evidence that no such
provision applies to petitions for circuit court review of
administrative agency decisions.” Id. at 524, 358 S.E.2d at
762. For these reasons, the timely filing of a petition for
appeal of an agency decision is jurisdictional.
We have never expressly considered whether payment of the
writ tax and clerk’s fees within the thirty-day period for
filing the petition also is jurisdictional. A careful
examination of the Rules and relevant statutes leads us to
conclude that it is not.
Rule 2A:4(a) provides that the filing of a petition for
appeal “shall include all steps provided in Rules 2:2 and 2:3 to
cause a copy of the petition to be served” on the necessary
parties. Rule 2:2 provides that “[t]he statutory writ tax and
clerk’s fees shall be paid before the subpoena in chancery is
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issued.” Code §§ 58.1-1727 to 58.1-1729 contain more general
provisions governing the payment of writ taxes. Such taxes are
imposed, inter alia, “upon (i) the commencement of every action,
in law or chancery, in a court of record, whether commenced by
petition or notice, ejectment or attachment.” Code § 58.1-1727.
Like Rule 2:2, Code § 58.1-1729 provides that “[n]o clerk shall
issue a writ, or docket any removed or appealed warrant, or any
notice mentioned in this article until the tax imposed under
this article has been paid,” but it also provides that “[the
clerk’s] failure to collect the tax shall not invalidate the
proceeding.” Therefore, the Rules and related statutes
contemplate that the clerk will not direct service of the
petition until the writ tax and clerk’s fees have been paid, but
Code § 58.1-1729 provides expressly that the clerk’s failure to
collect the writ tax is not fatal to the proceeding. See Davis
v. McCall, 133 Va. 487, 492, 113 S.E. 835, 837 (1922) (holding
that the fact plaintiff did not pay writ tax before clerk issued
writ “was a matter between the clerk and the commonwealth, and
. . . [that payment] was not such a necessary condition
precedent to the issuing of the writ as to entitle the defendant
to set it up in bar of the action”). Nothing in the statutes or
rules contravenes the application of this approach in VAPA
appeals. See Rule 2A:5 (providing that “[f]urther proceedings
[in VAPA appeals] shall be held as in a suit in equity and
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[that] the rules contained in Part Two, where not in conflict
with the Code [or Part Two A of the Rules], shall apply . . .”).
Here, the clerk effected service of the petition without
requiring payment of the writ tax and fees. Viewing Rules 2A:4
and 2:2 and Code § 58.1-1729 in light of our holding in Mayo, we
conclude that payment of the writ tax and clerk’s fees is not
jurisdictional as long as the petition is otherwise served in
compliance with the rules. 1 As we indicated in Mayo, the purpose
of the filing requirement in Rule 2A:4 is to keep the prevailing
party apprised of the status of the case and allow him to assume
the matter has ended if the non-prevailing party does not timely
request appellate relief. See 4 Va. App. at 523, 358 S.E.2d at
761. Here, appellant’s non-payment of the writ tax and clerk’s
fees did not deprive appellee of notice of the appeal.
Therefore, we hold that payment of the writ tax and clerk’s fees
within the thirty-day period for filing the petition for appeal
1
Although service here occurred within thirty days of
filing of the notice of appeal, the rules do not mandate that
service be effected within that time frame. See Rule 2A:4.
Rule 2A:4 requires only that the appellant shall complete all
acts required of him within that thirty-day period. Under Rule
2:4, “[n]o decree shall be entered against a defendant who was
served with process more than one year after institution of the
suit against him unless the court finds as a fact that the
plaintiff exercised due diligence to have timely service on
him.” See Rule 2A:5; see also Rule 3:3 (providing same one-year
limit for service of motions for judgment filed in actions at
law).
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is not mandatory and not jurisdictional. Accordingly, we
conclude that the circuit court erroneously granted appellee’s
motion to dismiss.
Further, we hold that the trial court had the discretion
under Rule 1:9 to permit appellant to pay the writ tax and
clerk’s fees after service of the petition for appeal, even
though Rule 2A:4 contemplates payment of the tax and fees before
service. Rule 2A:5 provides that following the filing of a
petition for appeal under the VAPA,
[f]urther proceedings shall be held as in a
suit in equity and the rules contained in
Part Two, where not in conflict with the
Code of Virginia or this part [Part Two A],
shall apply, but no matter shall be referred
to a commissioner in chancery. The
provisions of Part Four shall not apply and,
unless ordered by the court, depositions
shall not be taken.
Therefore, pursuant to Rule 2A:5, the circuit court, in
overseeing an administrative appeal, retains all authority
it would have in a suit in equity other than as expressly
excluded in that rule or relevant statutes. Manifestly, suits
in equity are governed by those rules in Part One, which
contains “GENERAL RULES APPLICABLE TO ALL PROCEEDINGS.”
Therefore, in VAPA appeals, the circuit court may rely on all
rules in Part One which would be applicable to suits in equity
under Part Two to the extent they do not conflict with the VAPA
or Part Two A of the Rules.
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Rule 1:9, entitled “Discretion of Court,” provides as
follows:
All steps and procedures in the clerk’s
office touching the filing of pleadings and
the maturing of suits or actions may be
reviewed and corrected by the court.
The time allowed for filing pleadings
may be extended by the court in its
discretion and such extension may be granted
although the time fixed already has expired;
but the time fixed for the filing of a
motion challenging the venue shall in no
case be extended except to the extent
permitted by § 8.01−264.
As discussed above, Rule 2A:4 requires that the petition for
appeal be filed and that the filing include all steps required
to cause the petition to be served on the necessary parties.
Therefore, Rule 1:9’s second paragraph, permitting the court to
extend the time for filing pleadings, does not apply to the
filing of a petition for appeal under the VAPA. Cf. Mayo, 4 Va.
App. at 523-24, 358 S.E.2d at 761-62 (without expressly
considering applicability of Rule 1:9, holding that thirty-day
time limit of Rule 2A:4 for filing of petition for appeal is
jurisdictional and may not be extended). However, because we
previously have held that payment of the writ tax and clerk’s
fees is not jurisdictional, the circuit court may apply Rule
1:9’s paragraph 1 to correct the clerk’s error in not collecting
the writ tax and clerk’s fees upon the filing of appellant’s
petition for appeal and prior to service of the petition.
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Here, the circuit court stated expressly that it would have
granted the motion if Rule 1:9 applied, but it erroneously
believed that Rule 1:9 did not apply. Therefore, we reverse and
remand to the circuit court for payment of the writ tax and
clerk’s fees and further proceedings consistent with this
opinion.
Reversed and remanded.
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Bumgardner, J., concurring.
I concur in the result, but I do not join in the majority
opinion which I believe speaks more broadly than necessary.
The appellant timely filed his petition for appeal, but the
clerk of court assessed no fee, so none was paid. Process
issued and was served timely and properly. The failure of the
clerk to assess the correct writ tax should not invalidate the
proceeding. See Code § 58.1-1729.
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