COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
JOHN E. SOMERS, II
MEMORANDUM OPINION *
v. Record No. 2899-00-1 PER CURIAM
MAY 29, 2001
ACCOMACK COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
(Barry Kantor; Grady A. Palmer, III;
Christie & Kantor, P.C., on brief), for
appellant.
No brief for appellee.
(Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General; Cheryl A. Wilkerson, Assistant
Attorney General, on brief), for Virginia
Department of Social Services.
John E. Somers, II, appeals the decision of the circuit court
dismissing his petition for appeal from an administrative hearing
conducted by the Virginia Department of Social Services (VDSS).
On appeal, Somers contends that the circuit court erred in (1)
dismissing his appeal on the basis that he incorrectly described
the adverse party's name in the caption of the petition for
appeal; (2) finding the appeal did not contain a misnomer when the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
correct party appeared although the petition incorrectly described
the adverse party's name; and (3) refusing to grant leave to amend
the petition to add the proper party. Somers asks us to reverse
the circuit court's dismissal and remand the case. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990).
Procedural Background
Somers filed a petition appealing a decision of the VDSS in
the circuit court. The only respondent named in the petition
was the Accomack County Department of Social Services (ACDSS).
VDSS had been served a copy of the petition and made a special
appearance by a Plea in Bar/Motion to Dismiss on the ground that
the agency rendering the challenged decision had not been made a
party to the appeal. The circuit court granted the plea and
dismissed the petition, finding that Somers had failed to
perfect his appeal because he did not include the name of VDSS
in the caption of his petition. Somers filed a Motion to Vacate
Order of Dismissal and Motion for Leave to Amend Bill of
Complaint. The circuit court denied these motion, and Somers
timely appealed.
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Discussion
I.
The Administrative Process Act does not
prescribe the procedure for perfecting an
appeal from the agency to the circuit court.
Code § 9-6:14:16 authorizes the Supreme
Court to establish these by rule, and they
are contained in Part Two A, Appeals
Pursuant to the Administrative Process Act.
Rule 2A:2 provides that a party shall file a
notice of appeal with the agency secretary.
Rule 2A:4 provides that within 30 days of
filing the notice, the party shall file a
petition for appeal with the clerk of the
circuit court. The filing of the petition
shall include all the steps established in
Rules 2:2 and 2:3 (the procedures for
initiating an equity bill of complaint and
having the clerk issue a subpoena in
chancery).
Bendele v. Commonwealth, 29 Va. App. 395, 397, 512 S.E.2d 827,
828 (1999).
Rule 2:2 provides, in pertinent part:
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 bill shall be captioned with the
name of the court and the full style of the
suit. . . .
. . . Without more it will be
understood that all the defendants mentioned
in the caption are made parties defendant
. . . , that proper process against them is
requested . . . .
Somers named only ACDSS in the caption, failing to make
VDSS a party to the appeal. "Generally, rules governing appeal
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procedures are mandatory and 'compliance with them is necessary
for the orderly, fair and expeditious administration of
justice.'" Mayo v. Dep't of Commerce, 4 Va. App. 520, 522, 358
S.E.2d 759, 761 (1987) (citation omitted). The naming of the
defendants in the caption in the petition for appeal of an
agency case decision is mandatory, as indicated by the General
Assembly's use of the word "shall." See Sours v. Virginia Bd.
for Architects, 30 Va. App. 313, 318, 516 S.E.2d 712, 715
(1999).
Both Code § 9-6.14:16 and Rule 2A:1(b) require that the
agency rendering a case decision be made a party to the judicial
review proceeding. The trial court correctly found that by
naming only ACDSS in the caption, Somers failed to make VDSS a
party to the action.
II.
"Misnomer arises when the right person is incorrectly
named, not where the wrong defendant is named." Swann v. Marks,
252 Va. 181, 184, 476 S.E.2d 170, 172 (1996). Somers named only
ACDSS in its appeal. ACDSS and VDSS "are two separate entities
. . . [t]hus, one cannot be substituted for another under the
concept of correcting a misnomer." Id.
"A general appearance 'is a waiver of process, equivalent
to personal service of process, and confers jurisdiction of the
person on the court.'" Gilpin v. Joyce, 257 Va. 579, 581, 515
S.E.2d 124, 125 (1999) (quoting Nixon v. Rowland, 192 Va. 47,
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50, 63 S.E.2d 757, 759 (1951)). However, VDSS did not make a
general appearance before the court. Instead, VDSS specially
appeared to challenge the court's jurisdiction. By making a
special appearance, VDSS did not thereby submit to the
jurisdiction of the court. The trial court correctly found that
the proper party was not before the court and that a misnomer
had not occurred.
III.
When Somers named ACDSS as respondent in his petition for
judicial review, he did not provide VDSS with formal notice
constituting process "which informed[ed] the opposing party of
the litigation and instruct[ed] the party when and where it must
respond." Bendele, 29 Va. App. at 399, 512 S.E.2d at 829. This
failure was jurisdictional, and the circuit court did not have
the authority to extend time limits to allow for the amendment
of pleadings. Identifying the correct party respondent must be
accomplished during the thirty-day period prescribed in Rule
2A:4. "The 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." Mayo, 4 Va. App. at 524, 358
S.E.2d at 761. Because the circuit court did not have
jurisdiction over the proceeding, it correctly concluded that it
had no authority to allow an amendment of the pleadings.
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Accordingly, the dismissal by the circuit court is summarily
affirmed.
Affirmed.
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