COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
EDWARD H. BENDER
MEMORANDUM OPINION * BY
v. Record No. 1145-99-1 JUDGE ROBERT P. FRANK
JANUARY 27, 2000
THE VIRGINIA MARINE RESOURCES COMMISSION
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
(Edward H. Bender, pro se, on briefs).
Appellant submitting on briefs.
(Mark L. Earley, Attorney General; Roger L.
Chaffe, Senior Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Edward H. Bender (appellant) appeals the ruling of the
Circuit Court of Northampton County dismissing his petition for
appeal that challenged a regulation promulgated by the Virginia
Marine Resources Commission (VMRC). On appeal, he contends the
circuit court erred in: 1) finding that appellant did not
exercise due diligence, pursuant to Rule 2:4, to effect service of
process on the VMRC within one year of filing his petition for
appeal 1 and 2) ruling that VMRC had standing to appear specially
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
On brief, appellant argued: (A) A suit in equity was
commenced, instituted and pending as to the VMRC; (B) appellee
received actual and timely notice; (C) the attachment of a
subpoena in chancery to the petition is not necessary at the
before the circuit court and move to dismiss the petition for
appeal.
For the following reasons, we affirm the judgment of the
circuit court.
The pertinent facts are not disputed. On December 19, 1997,
appellant timely filed a notice of appeal with the circuit court
challenging amendments to a regulation promulgated by VMRC.
Within thirty days, appellant filed a "Petition for Review" with
the circuit court, a copy of which he personally served upon
VMRC's secretary. Appellant asked the circuit court to issue a
subpoena in chancery. When the petition was processed for
service, the circuit court clerk's office neglected to attach a
subpoena to the petition, and a subpoena in chancery was not
served upon VMRC.
The clerk's office notified the parties of this oversight in
a February 12, 1998 letter stating, "If we can be of any further
assistance, please advise." Thereafter, in a pleading filed with
the circuit court, VMRC acknowledged receipt of the clerk's letter
and withdrew a motion to quash process that it previously had
commencement of a suit; (D) the error of the clerk in not
attaching a subpoena in chancery to the petition is harmless;
(E) it is the clerk's duty to issue subpoenas and deliver them
for service; (F) there is no specific statutory requirement or
Rule that service of process is required within any specific
time; (G) the appellee's February 23, 1999 second motion to
dismiss was premature and lacks merit. We do not address these
issues because they were not properly included in appellant's
questions presented. See Rule 5A:20.
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filed. VMRC noted, however, that it still had not been served
with a subpoena in chancery and that "[u]nless and until such
process is issued, the Commission is not properly before the Court
and the latter will have no jurisdiction to proceed. Counsel for
the Commission has not waived service and/or entered a general
appearance for its client and has no authority to do so."
Appellant took no further steps to have a subpoena in
chancery served on VMRC, and no subpoena was ever served.2 Since
VMRC asserted that the circuit court did not have jurisdiction
over it, VMRC never transmitted the agency record to the circuit
court. On February 23, 1999, more than twelve months after
appellant filed his petition for appeal, VMRC filed a motion to
dismiss for lack of service pursuant to Rule 2:4. Following a
hearing, the circuit court granted VMRC's motion and dismissed the
appeal.
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." Bendele v.
Commonwealth, 29 Va. App. 395, 397, 512 S.E.2d 827, 828 (1999).
2
While appellant contends in his reply brief that he spoke
to the clerk on several occasions in an effort to have process
served, the record does not support this contention.
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Rule 2A:4 establishes the filing requirements for the petition for
appeal and provides that "[s]uch 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."
"When following the equity procedures incorporated by Rule
2A:4, process would be the subpoena in chancery." Bendele, 29
Va. App. at 399, 512 S.E.2d at 829. Rule 2:4, which applies to
proceedings under the Administrative Process Act (APA) pursuant
to Rule 2A:5, 3 provides that the subpoena in chancery must be
attached to and served with the petition or bill of complaint.
"No decree shall be entered against a defendant who was
served with process more than one year after the 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." Rule 2:4. "The noun 'diligence' means 'devoted and
painstaking application to accomplish an undertaking.' . . .
The determination whether diligence has been used is a factual
question to be decided according to the circumstances of each
case." Dennis v. Jones, 240 Va. 12, 19, 393 S.E.2d 390, 393
(1990) (interpreting "due diligence" as that term is used in
3
Rule 2A:5 provides that proceedings under the APA "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, shall apply."
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Rule 3:3, which establishes a twelve-month service deadline in
actions at law) (citations omitted).
The record establishes that VMRC was never served with a
subpoena in chancery. Despite the clerk's office's notification
to appellant that the subpoena had not been served, and VMRC's
pleading advising appellant that it would not submit itself to
the circuit court's jurisdiction until it was properly served
with process, appellant took no further steps to have the
subpoena in chancery issued and served. Although the initial
failure to have the subpoena in chancery issued and served was
the result of an error in the clerk's office, appellant has
presented no reason why he could not have contacted the clerk's
office after receiving the February 12, 1998 letter to request
that the subpoena in chancery be issued and served on VMRC.
Accordingly, the circuit court did not err when it granted
VMRC's motion to dismiss.
II.
Under Rule 2A:3:
The agency secretary shall prepare and
certify the record as soon as possible after
the notice of appeal and transcript or
statement of testimony is filed and shall,
as soon as it has been certified by him,
transmit the record to the clerk of the
court named in the notice of appeal.
Appellant asserts that VMRC did not have standing to
challenge jurisdiction because of the agency's failure to comply
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with Rule 2A:3. 4 He has not, however, cited any rule of court,
statute, or precedent in support of this position, and we are
aware of none. Moreover, appellant has failed to establish how
he was prejudiced by VMRC's failure to certify and transmit the
record. VMRC challenged the circuit court's jurisdiction based
on the fact that the agency was never served with process. The
agency record was, therefore, immaterial to VMRC's motion to
dismiss, or appellant's response thereto until VMRC was properly
before the court. Accordingly, the circuit court did not err
when it permitted VMRC to challenge the court's jurisdiction
before satisfying the requirements of Rule 2A:3.
For the reasons stated herein, the judgment of the circuit
court is affirmed.
Affirmed.
4
Appellant also asserts that VMRC failed to comply with
Rule 2A:4 and that this failure denied the agency standing to
challenge the circuit court's jurisdiction. Appellant did not
present this argument to the circuit court, and we will not
address it for the first time on appeal. See Turner v. Jackson,
14 Va. App. 423, 432, 417 S.E.2d 881, 888 (1992); Rule 5A:18.
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