Clarence H. Carter, Commissioner,et al. v. Crabtree

• Court: Court of Appeals of Virginia
• Decided: September 7, 1999
• Docket: 1437983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bumgardner and Lemons Argued at Salem, Virginia

CLARENCE H. CARTER, COMMISSIONER, VIRGINIA DEPARTMENT OF SOCIAL SERVICES MEMORANDUM OPINION * BY v. Record No. 1437-98-3 JUDGE DONALD W. LEMONS SEPTEMBER 7, 1999 CARL RICHARD CRABTREE, SR.

FROM THE CIRCUIT COURT OF RUSSELL COUNTY Donald A. McGlothlin, Jr., Judge

Daniel J. Poynor, Assistant Attorney General (Mark L. Earley, Attorney General; Ashley L. Taylor, Jr., Deputy Attorney General; Siran S. Faulders, Senior Assistant Attorney General, on briefs), for appellant.

Susan Gumm Kennedy (Client Centered Legal Services of Southwest Virginia, Inc., on briefs), for appellee.

Clarence H. Carter, Commissioner of the Virginia Department

of Social Services (DSS), contends the trial court erred in

overruling DSS's demurrer and motion to dismiss and in reversing

and remanding the DSS findings against Carl Richard Crabtree of

sexual abuse, physical abuse and inadequate supervision. On

appeal, the Commissioner argues that the court did not have

jurisdiction to hear Crabtree's appeal. We agree and reverse

and remand.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. BACKGROUND

On December 14, 1995, a hearing officer designated by the

Commissioner (the "Commissioner") of the DSS issued her decision

sustaining findings of sexual abuse, physical abuse and

inadequate supervision against Carl Richard Crabtree. On the

same day, the Commissioner sent notice of the decision to

Crabtree by certified mail.

By letter dated January 10, 1996, Crabtree sent notice of

his intention to appeal the DSS findings. The cover letter sent

with the notice was stamped "Received" by the DSS on January 19,

1996. On February 9, 1996, Crabtree's petition for appeal was

filed in the Russell County Circuit Court. On March 20, 1996

the Commissioner filed a demurrer and a motion to dismiss on the

ground that the notice of appeal was not timely filed.

In its final order, the trial court stated that the "Notice

of Appeal was timely filed in accordance with Rule 2A:2 of the

Rules of the Supreme Court of Virginia on January 10, 1996, when

it was placed in the U.S. Mail, by certified mail, return

receipt requested, postage prepaid." The court also stated that

"the Notice of Appeal does not have to be received by the

Department of Social Services within the 30-day notice period

for this appeal to be perfected, but only that, when mailed by

registered or certified mail, it must be mailed within the

30-day period."

- 2 - II. DEFINITION OF "FILING"

The trial court held that Rule 2A:2 of the Rules of Supreme

Court of Virginia was satisfied when Crabtree mailed his notice

of appeal within the appropriate filing period. Rule 2A:2

states in relevant part:

Any party appealing from a . . . case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel. . . . [S]ending notice of appeal to an agency's counsel shall not satisfy the requirement that a notice of appeal be filed with the agency secretary.

The language of Rule 2A:2 distinguishes between "sending"

and "filing." Filing requires actual receipt. See School Board

of Loudoun County v. Burk, 249 Va. 163, 455 S.E.2d 228 (1993)

(where school board did not actually receive notice of appeal

which had been mailed during ten-day statutorily prescribed

period for "filing," trial court did not have jurisdiction to

hear the matter).

We have interpreted the meaning of "filing" elsewhere in

the Rules. In Haywood v. Commonwealth, 15 Va. App. 297, 298,

423 S.E.2d 202, 203 (1992), we found that "filing" under Rule

5A:1(b)(10) meant "physical delivery." We hold that physical

delivery, not posting in the United States mail, is required for

satisfying the "filing" requirement under Rule 2A:2.

Accordingly, we hold that the trial court erred in finding that

- 3 - Rule 2A:2 was satisfied when Crabtree mailed his notice of

appeal within the period of time prescribed for filing.

III. APPLICATION OF RULE 1:7

We must now decide whether Crabtree's filing occurred

within the time allotted.

Rule 2A:2 states, in relevant part:

Any party appealing from a . . . case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel. In the event that service of a case decision upon a party is accomplished by mail, 3 days shall be added to the 30-day period. Service under this Rule shall be consistent with [Code] § 9-6.14:14 and, if made by mail, shall be sufficient if sent by registered or certified mail to the party's last address known to the agency.

The Commissioner maintains that the thirty-day period

within which Crabtree was required to file his notice of appeal

began on December 14, 1995, the day the Commissioner sent

Crabtree notice of the decision. The Commissioner argues that

the extra three days allotted for mailing resulted in a filing

deadline of January 16, 1996. The Commissioner further argues

that because Crabtree's notice of appeal was not received until

January 19, 1996, it was not timely filed, and the court had no

jurisdiction to hear the appeal.

Crabtree argues that because the DSS utilized the mail to

inform him of the decision, its action increased the appeal

- 4 - period from thirty days to thirty-three days. Additionally, he

argues that because he chose to note his appeal by mail the

provisions of Rule 2A:2 are supplemented by an additional three

days pursuant to Rule 1:7, and the filing period is extended for

an additional three days for a total of thirty-six days. If

Crabtree is correct, his filing was on the thirty-sixth day and

was timely.

Rule 1:7 states in relevant part:

Whenever a party is required or permitted under these Rules, or by direction of the court, to do an act within a prescribed time after service of a paper upon counsel of record, three (3) days shall be added to the prescribed time when the paper is served by mail, or one (1) day shall be added to the prescribed time when the paper is served by facsimile or commercial delivery service. With respect to Parts Five and Five A of the Rules, this rule applies only to the time for filing a brief in opposition.

By its terms Rule 1:7 does not apply to this case. Rule

1:7 grants an additional three days for response after "service

of a paper upon counsel of record." The "service of a paper" in

this case, under Rule 2A:2, refers to the Commissioner's

communication of notice of the agency decision and does not

refer to the manner in which Crabtree chose to file his appeal

to the circuit court.

IV. CONCLUSION

Because Crabtree's filing of his notice of appeal did not

take place within the time allotted for filing an appeal of an

- 5 - agency determination, the trial court was without jurisdiction

to remand the case to the Department of Social Services for

further administrative hearings. We remand for the entry of an

order dismissing the appeal of the agency determination.

Reversed and remanded.

- 6 -