PRESENT: All the Justices
WELLMORE COAL CORPORATION
PER CURIAM
v. Record No. 011755 September 13, 2002
HARMAN MINING CORPORATION, ET AL.
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
In this appeal, we consider whether a notice of appeal that
was signed only by a foreign attorney, in violation of Rule 1A:4
of the Rules of this Court, requires granting a motion to
dismiss.
I. Facts and Proceedings Below
We recite only those facts relevant to the issue of
dismissal of this appeal. Sovereign Coal Sales, Inc.
(“Sovereign”), Harman Mining Corporation (“Harman”), and
Wellmore Coal Corporation (“Wellmore”) entered into a coal
supply agreement in 1997. Sovereign and Harman subsequently
filed a motion for judgment against Wellmore, alleging bad faith
and breach of the 1997 agreement. Sovereign, Harman, and
Wellmore were each represented by foreign counsel, in
association with members of the Virginia State Bar, pursuant to
Rule 1A:4 of the Rules of this Court. David B. Fawcett, III
(“Fawcett”), an attorney licensed in Pennsylvania, was admitted,
pro hac vice, to represent Harman and Sovereign. Jeff A. Woods
(“Woods”), an attorney licensed in Kentucky, was admitted, pro
hac vice, to represent Wellmore.
After a lengthy trial, the jury returned a verdict in favor
of Harman and Sovereign and awarded damages in the amount of $6
million. On May 1, 2001, the trial court sent a letter to
Fawcett and Woods, informing them that “[a]s a result of
Counsels’ inability to agree to terms of the Final Judgment
Order . . . the [c]ourt has constructed an Order of its own for
entry which will be entered effective May 7, 2001.”
On May 7, 2001, Pamela J. Fleming (“Fleming”), secretary to
the trial judge, mailed the final order to Fawcett with a cover
letter stating, “[p]ursuant to Judge Williams’ letter of May 1,
2001, enclosed herewith is the Final Judgment Order entered May
7, 2001.” The order had been signed by the trial judge, and the
face of the order instructed: “Enter this Final Judgment Order
this 7th day of May, 2001.” In her letter, Fleming instructed
Fawcett to endorse the order and forward it to Woods for his
signature. Fawcett endorsed and forwarded the order to Woods on
May 14, 2001, and on June 1, 2001, Woods’ paralegal hand-
delivered the fully endorsed order to Fleming.
Wellmore filed a notice of appeal, signed only by Woods.
It was received and filed in the office of the Clerk for the
Circuit Court for Buchanan County on June 5, 2001. On June 28,
2001, Wellmore filed a notice of entry of appearance of Wayne T.
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Horne (“Horne”), an attorney from Grundy, Virginia, for
Wellmore. Also on June 28, Wellmore filed an amended notice of
appeal “to add additional counsel.” Horne signed the amended
notice of appeal.
This Court granted Wellmore’s petition for appeal by order
dated February 21, 2002, and the parties submitted briefs on the
merits of their arguments. On April 30, 2002, Harman and
Sovereign filed a motion to dismiss Wellmore’s appeal based upon
Wellmore’s failure to comply with Rule 1A:4 and untimely filing
pursuant to Rule 5:9(a). Harman and Sovereign maintain that
because Wellmore’s June 5, 2001 notice of appeal was signed only
by foreign counsel, the notice was invalid. They further argue
that the amended notice of appeal, which complied with Rule
1A:4, was untimely because it was filed beyond the 30-day time
period required by Rule 5:9(a). Harman and Sovereign argue that
a valid and timely notice of appeal was not filed; consequently,
this Court does not have jurisdiction to hear the appeal.
Wellmore argues that the May 7, 2001 order was
“conditional” and did not become a final order until it was
fully endorsed by all parties, which occurred no earlier than
June 1, 2001. Therefore, Wellmore maintains that the amended
notice of appeal was timely filed on June 28, 2001. In the
alternative, Wellmore argues that even if the order was final on
May 7, 2001, and the June 5, 2001 notice of appeal was “invalid”
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pursuant to Rule 1A:4, the original notice was not “void.”
Accordingly, Wellmore maintains that the defect in signature was
curable pursuant to Code § 8.01-428(B).
II. Analysis
Rule 5:9(a) provides that “[n]o appeal shall be allowed
unless, within 30 days after the entry of final judgment . . .
counsel for the appellant files with the clerk of the trial
court a notice of appeal. . . .” Rule 5:1(b)(13) clarifies that
the “date of entry” of any final judgment “shall be the date the
judgment . . . is signed by the judge.” In the present case,
the face of the final order plainly indicates that it was signed
by the trial judge on May 7, 2001. Contrary to the assertion
made by Wellmore, there was nothing “conditional” about the
entry of final judgment.
Wellmore filed a notice of appeal on June 5, 2001, within
the 30-day period required by Rule 5:9(a). However, the notice
of appeal was signed only by Woods, Wellmore’s foreign counsel.
Rule 1A:4 governs the practice of law by foreign attorneys in
Virginia. In pertinent part, the Rule states: “Except where a
party conducts his own case, a pleading, or other paper required
to be served (whether relating to discovery or otherwise) shall
be invalid unless it is signed by a member of the Virginia State
Bar.”
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The term “invalid” is defined as “[n]ot legally binding.”
Black’s Law Dictionary 829 (7th ed. 1999). Accordingly,
pursuant to Rule 1A:4, the notice of appeal, filed on June 5,
2001, was not legally binding; therefore, it had no legal
effect. The June 28, 2001 amended notice was filed beyond the
30-day period contained in Rule 5:9(a). While titled “amended
notice,” an amendment presupposes a valid instrument as its
object. Because the June 5, 2001 notice of appeal was invalid,
there was nothing to amend.
Wellmore maintains that the invalidity of the June 5, 2001
instrument was curable pursuant to Code § 8.01-428(B), which
provides: “Clerical mistakes in all judgments or other parts of
the record and errors therein arising from oversight or from an
inadvertent omission may be corrected by the court at any time
on its own initiative or upon the motion of any party . . .”
Wellmore asserts that the purpose of Code § 8.01-428(B) is to
allow for correction of defects in form. According to Wellmore,
the lack of the required signature on its notice of appeal
constitutes such a defect. Therefore, Wellmore maintains that
the amended notice of appeal served to correct the defect in
form in the original notice, pursuant to Code § 8.01-428(B).
We recognize that Code § 8.01-428(B) provides for the
correction of clerical errors; however, the signature defect at
issue in the present case is not a “clerical error” as
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contemplated by the Code. “Scrivener’s or similar errors in the
record, which are demonstrably contradicted by all other
documents, are clerical mistakes.” Zhou v. Zhou, 38 Va. App.
126, 133, 562 S.E.2d 336, 339 (2002). Such errors cause the
court’s record to fail to “speak the truth.” Id. (citing School
Bd. of the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237
Va. 550, 555, 379 S.E.2d 319, 322 (1989)). Examples of clerical
errors include a typographical error made by a court reporter
while transcribing a court proceeding, Lamb v. Commonwealth, 222
Va. 161, 165, 279 S.E.2d 389, 392 (1981), or an unintended error
in the drafting of a divorce decree, Dorn v. Dorn, 222 Va. 288,
291, 279 S.E.2d 393, 394 (1981). The failure of Wellmore’s
Virginia counsel to append his signature to the notice of
appeal, as required by Rule 1A:4, does not constitute a clerical
error contemplated by Code § 8.01-418(B); accordingly, Code
§ 8.01-428(B) provides Wellmore no relief in the present case.
Based upon the failure of the notice of appeal to comply
with Rule 1A:4 and the filing of the amended notice outside the
30-day requirement of Rule 5:9(a), we will grant Harman’s and
Sovereign’s motion to dismiss Wellmore’s appeal. See School Bd.
of the City of Lynchburg, 237 Va. at 556-57, 379 S.E.2d at 323.
Dismissed.
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