Muse Construction Group, Inc. v. Commonwealth of Virginia Board for Contractors

*94HUFF, Judge.

Muse Construction Group, Inc. (“appellant”) appeals the Circuit Court of Albemarle County’s (“circuit court”) decision dismissing appellant’s appeal of a final decision of the Commonwealth of Virginia Board for Contractors (“Board”). On appeal, appellant contends that the circuit court erred in finding that its petition for appeal was not served on the Secretary of the Board (“agency secretary”) in accordance with the Rules of the Supreme Court of Virginia. For the following reasons, we reverse and remand.

I. BACKGROUND

The facts relevant to this appeal are as follows. After conducting an investigation, holding an informal fact-finding conference, and reporting its findings relating to alleged violations resulting from appellant’s contract to build a house, the Board entered a final order and opinion revoking appellant’s contracting license on September 21, 2010.

On October 22, 2010, appellant timely filed a notice of appeal with the Board. On November 10, 2010, appellant timely filed a petition for appeal with the circuit court and mailed a copy of the petition by certified mail to the agency secretary, which the agency secretary received on November 12, 2010.

On February 7, 2011, appellant received a copy of the Board’s special plea in bar for lack of jurisdiction, in which the Board contended that appellant had not properly served the agency secretary in accordance with Rule 2A:4. On February 8, 2011, appellant contacted the clerk of the circuit court and requested that the circuit court provide service of appellant’s petition for appeal on the agency secretary, which the agency secretary received on February 25, 2011.

On March 3, 2011, the Board filed a motion to dismiss with the circuit court alleging appellant failed to take the necessary steps to perfect service on the agency secretary within the thirty-day period prescribed by Rule 2A:4. On May 31, 2011, the circuit court dismissed the case for “failure to take the *95steps required by Rules 3:2, 3:3 and 3:4 of the Rules of the Supreme Court of Virginia for filing and service of a complaint to commence a civil action to have the petition for appeal served with process upon the agency secretary ... as required by Rule 2A:4(a).... ” This appeal followed.

II. STANDARD OF REVIEW

In reviewing the circuit court’s interpretation of the Rules of the Supreme Court of Virginia, we apply a de novo standard of review. See Va. Ret. Sys. v. Avery, 262 Va. 538, 543, 551 S.E.2d 612, 615 (2001).

III. ANALYSIS

Appellant contends that the circuit court erred in dismissing its appeal for lack of jurisdiction after finding that the petition for appeal was not served on the agency secretary in accordance with Rule 2A:4. Appellant further asserts that Code § 8.01-288 cures any defect in service because the agency secretary received the petition for appeal within the prescribed time period. Because we agree with appellant’s contention that its service by certified mail of the petition for appeal satisfied the requirements of Rule 2A:4, we do not reach appellant’s argument for the application of Code § 8.01-288.

Rule 2A:4 provides, in pertinent part, that

[wjithin 30 days after the filing of the notice of appeal, the appellant shall file a petition for appeal with the clerk of the circuit court named in the first notice of appeal to be filed. Such filing shall include within such 30-day period both the payment of all fees and the taking of all steps provided in Rules 3:2, 3:3 and 3:4 to cause a copy of the petition for appeal to be served (as in a civil action) on the agency secretary and on every other party.

(Emphasis added).

Rule 2A:4 requires a party seeking an appeal in the circuit court “to cause a copy of the petition for appeal to be served *96(as in a civil action) on the agency secretary and on every other party”—not “to cause a copy of the petition for appeal to be served (as in the case of a bill of complaint in equity),” as it did prior to its amendment in 2006. Rule 2A:4 (1977) (amended 2006). A bill of complaint in equity was the initial pleading used to institute a new action in chancery, and therefore required service of initial process by a process server. Thus, in applying Rule 2A:4 prior to its amendment, the practice was to require service of process on the agency secretary in the form of a subpoena in chancery affixed to a copy of the filed petition for appeal, served by a process server.1 Bendele v. Commonwealth, 29 Va.App. 395, 399, 512 S.E.2d 827, 829 (1999). See generally Kessler v. Smith, 31 Va.App. 139, 521 S.E.2d 774 (1999).

In conjunction with the merger of law and equity in 2006, the amendment to Rule 2A:4 removed the requirement that service of the petition for appeal comply with the same procedural formalities as would apply to the institution of a new action. Rule 2A:4 (1977) (amended 2006). Because the Supreme Court “is presumed to be aware of the decisions of this Court” that addressed Rule 2A:4 prior to its amendment, Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001) (citation omitted), and is presumed to have “chose[n] with care the words it used,” Saunders v. Commonwealth, 48 Va.App. 196, 203, 629 S.E.2d 701, 704 (2006), we find that the Supreme Court specifically chose to amend Rule 2A:4 to require that “service” be “as in a civil action.” Further, the Supreme Court’s choice of words evidences a departure from the prior practice that service by a process server be performed “as in the case of a bill of complaint in equity.” Rule 2A:4 (1977) (amended 2006); see Kessler, 31 Va.App. at 144, *97521 S.E.2d at 776 (“ ‘Where the language of a [rule] is clear and unambiguous, we are bound by the plain statement of ... intent.’ ” (citation omitted)); see also Code § 8.01-3. Thus, the Supreme Court plainly removed the requirement that an agency secretary be served by a process server on an appeal of an administrative agency’s case decision.2

Because the amendment changed the service requirement to conform to the general rules applicable “in a civil action,” it follows that “service” can be accomplished pursuant to Rule 1:12 if the parties are already at issue by the time an appeal is made to the circuit court. See Avery, 262 Va. at 543 n. 2, 551 S.E.2d at 614 n. 2 (declining to address whether service conformed to the amended language of Rule 1:12, which allows for delivery by a commercial delivery service, given that service had occurred prior to the amendment). In the case at bar, the parties had been at issue for months prior to appellant’s appeal to the circuit court. Rule 2A:4 therefore does not require service of process—i.e. a summons, affixed to the petition for appeal, served by a process server—as would be *98needed to institute a new action. Accordingly, we find Rule 1:12 applicable in this case.

Rule 1:12 provides, in pertinent part, that

[a]ll pleadings, motions and other papers not required to be served otherwise and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile, delivering by electronic mail when Rule 1:17 so provides or when consented to in writing signed by the person to be served, or by mailing, a copy to each counsel of record on or before the day of filing.

In this case, appellant timely filed a petition for appeal with the circuit court on November 10, 2010. On the date of filing, appellant also mailed a copy of the petition to the agency secretary by certified mail. The agency secretary received a copy of appellant’s petition for appeal on November 12, 2010. Because Rule 2A:4 does not require that the petition for appeal be served by a process server, we conclude that appellant complied with Rule 2A:4 by serving a copy of the petition on the agency secretary pursuant to Rule 1:12 within the prescribed time period. Further, it does not appear from the record before us on appeal that any required fees went unpaid or that any steps required in Rules 3:2, 3:3, and 3:4 were not taken during that thirty-day period. See Rule 2A:4 (requiring “within such 30-day period both the payment of all fees and the taking of all steps provided in Rules 3:2, 3:3 and 3:4 to cause a copy of the petition for appeal to be served (as in a civil action) on the agency secretary and on every other party”). Therefore, the circuit court erred in ruling that it was divested of jurisdiction over the appeal.

IV. CONCLUSION

Because we find that appellant complied with the requirements for serving its petition for appeal on the agency secretary pursuant to Rule 2A:4, we hold that the circuit court erred in ruling that it was divested of jurisdiction over the appeal. Accordingly, we reverse the circuit court’s decision *99and remand the case to the circuit court for proceedings consistent with this opinion.

Reversed and remanded.

. Rule 2A:4 adopts by reference Rules 3:2, 3:3, and 3:4, and directs that they be used “to cause a copy of the petition for appeal to be served (as in a civil action) on the agency secretary....” Rule 2A:4 imposes no requirement for issuance of a summons or process. Even if such were required, Rule 3:2(c)(i) delegates such duty to the clerk of the circuit court. Kessler v. Smith, 31 Va.App. 139, 144, 521 S.E.2d 774, 776 (1999).

. The rules governing appeals pursuant to the Virginia Administrative Process Act ("VAPA”) are promulgated pursuant to Code § 2.2-4026. Rule 2A:l(a). In drafting the Rules, the Supreme Court referred to the review of an agency's case decision as a “direct appeal.” Rule 2A:l(a); see Rules 2A:2, 2A:3 and 2A:4 (providing for a notice of appeal, a petition for appeal, and a record on appeal); see also J.P. v. Carter, 24 Va.App. 707, 721, 485 S.E.2d 162, 169 (1997) (noting that the circuit court reviews an agency’s case decision in a manner " 'equivalent to an appellate court's role in an appeal from a trial court,' ” and thus, " '[i]n this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal’ ” (quoting Sch. Bd. v. Nicely, 12 Va.App. 1051, 1062, 408 S.E.2d 545, 551 (1991))). Neither the Rules nor the statute express that such an appeal is a new action. Accordingly, the plain meaning of the Rules, read in concert with VAPA, distinguishes a direct review of an agency’s case decision from a new action, which would require service by a process server.

The dissent has expressed concern that our reading of Code § 2.2-4026 as it applies to the review of an agency’s case decision may create a "procedural nightmare” in adjudicating reviews of the adoption of a regulation under the same statutory provision. Infra at 110, 724 S.E.2d at 225. Our holding, however, is limited to the context of an agency’s case decision where the parties are already at issue.