Sours v. VIRGINIA BOARD FOR ARCHITECTS

516 S.E.2d 712, 30 Va. App. 313, 1999 Va. App. LEXIS 451
CourtCourt of Appeals of Virginia
DecidedJuly 27, 1999
DocketRecord 1716-98-4
StatusPublished
Cited by11 cases

This text of 516 S.E.2d 712 (Sours v. VIRGINIA BOARD FOR ARCHITECTS) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sours v. VIRGINIA BOARD FOR ARCHITECTS, 516 S.E.2d 712, 30 Va. App. 313, 1999 Va. App. LEXIS 451 (Va. Ct. App. 1999).

Opinions

ELDER, Judge.

Burton O. Sours, Jr., (appellant) appeals from a ruling of the Fairfax County Circuit Court dismissing his appeal from a decision issued by the Virginia Board for Architects, Professional Engineers, Land Surveyors and Landscape Architects (the Board) under the Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:1 through 9-6.14:25. On appeal, he contends the circuit court (1) erred in holding that timely payment of the statutory writ tax and clerk’s fees is jurisdictional; (2) erred in holding that Rule 1:9 of the Rules of the Supreme Court does not apply to actions filed pursuant to Part Two A of the Rules; and (3) abused its discretion in denying his request for leave to pay the writ tax and clerk’s fees. For the reasons that follow, we reverse the ruling of the circuit court and remand for further proceedings.

I.

FACTS

Harold A. Logan, a licensed land surveyor, filed a complaint with the Commonwealth’s Department of Professional and Occupational Regulation (the Department), alleging that appellant violated various sections of the Virginia Code by altering subdivision plans prepared by Logan. Appellant, the Fairfax County Surveyor, took the position that his alteration of Logan’s plans occurred in the course of his duties as the County Surveyor and did not violate the Code. Following an investigation and informal fact-finding conference pursuant to the VAPA, Code § 9-6.14:11, the Board concluded that appellant “utilized the work of another professional without the professional’s consent” and issued an order to that effect on January 5,1998. Although appellant was represented in those proceedings by the County Attorney’s office, the Board’s order was against appellant alone.

[317]*317Appellant timely filed his notice of appeal on February 5, 1998, and timely filed his petition for appeal on March 9,1998. The petition listed appellant as “BURTON O. SOURS, JR., Fairfax County Surveyor,” and was signed by the County Attorney. The clerk’s office charged no filing fee. The petition for appeal was served on Logan on April 3, 1998, and on the Board on April 6,1998.

The Board moved to dismiss the petition on the ground that the petition for appeal was not timely filed because appellant did not pay the statutory writ tax and clerk’s fees. It posited that the clerk filing the petition did not collect the tax and fees because the County Attorney was representing appellant. The Board contended, however, that the proceedings were against appellant in his individual capacity as a licensed surveyor and were independent of his employment with the county and that, as a consequence, the tax and fees were due.

Appellant argued that the actions for which he was sanctioned were performed in the course of his duties as the County Surveyor and that the clerk acted properly in not requiring him to pay the writ tax and clerk’s fees. Alternatively, he argued that Rules 2:2 and 2A:4 do not require that the tax and fees be paid within the thirty-day appeal period and that Rule 1:9 gave the circuit court discretion to permit payment of the tax and fees beyond the thirty-day period.

The circuit court rejected appellant’s argument that he was not required to pay the writ tax and clerk’s fees and held that their timely payment was a necessary condition to the perfection of his appeal. Appellant moved the court to exercise its discretion under Rule 1:9 to permit payment of the tax and fees at that time. In a hearing on the motion, the circuit court said that “if 1:9 controls, I would readily grant this motion.” It ultimately denied the motion on the ground that “[i]t is mandatory to file the fee.”

Appellant noted his appeal to this Court. He has not appealed the circuit court’s ruling that he was statutorily required to pay the writ tax and clerk’s fees.

[318]*318II.

ANALYSIS

Part Two A of the Rules of the Supreme Court governs the appeal from a case decision of an agency pursuant to the VAPA. Rule 2A:4 provides, in relevant part, as follows:

(a) Within 30 days after the filing of the notice of appeal, the appellant shall file his petition for appeal with the clerk of the circuit court named in the first notice of appeal to be filed. Such 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.

The thirty-day period in which to file a petition for appeal of an agency case decision is mandatory, as indicated by the General Assembly’s use of the word, “' shall.’” Mayo v. Department of Commerce, 4 Va.App. 520, 523, 358 S.E.2d 759, 761 (1987). “ ‘The purpose of the specific time limit is not to penalize the appellant but to protect the appellee. If the required papers are not [timely] filed, the appellee is entitled to assume that the litigation is ended, and to act on that assumption.’ ” Id. (quoting Avery v. County Sch. Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951)). Furthermore, “[t]he 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.” Id. at 524, 358 S.E.2d 759, 358 S.E.2d at 762. For these reasons, the timely filing of a petition for appeal of an agency decision is jurisdictional.

We have never expressly considered whether payment of the writ tax and clerk’s fees within the thirty-day period for filing the petition also is jurisdictional. A careful examination of the Rules and relevant statutes leads us to conclude that it is not.

Rule 2A:4(a) provides that the filing of a petition for appeal “shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be served” on the necessary parties. [319]*319Rule 2:2 provides that “[t]he statutory writ tax and clerk’s fees shall be paid before the subpoena in chancery is issued.” Code §§ 58.1-1727 to 58.1-1729 contain more general provisions governing the payment of writ taxes. Such taxes are imposed, inter alia, “upon (i) the commencement of every action, in law or chancery, in a court of record, whether commenced by petition or notice, ejectment or attachment.” Code § 58.1-1727. Like Rule 2:2, Code § 58.1-1729 provides that “[n]o clerk shall issue a writ, or docket any removed or appealed warrant, or any notice mentioned in this article until the tax imposed under this article has been paid,” but it also provides that “[the clerk’s] failure to collect the tax shall not invalidate the proceeding.” Therefore, the Rules and related statutes contemplate that the clerk will not direct service of the petition until the writ tax and clerk’s fees have been paid, but Code § 58.1-1729 provides expressly that the clerk’s failure to collect the writ tax is not fatal to the proceeding. See Davis v. McCall, 133 Va. 487, 492, 113 S.E. 835, 837 (1922) (holding that the fact plaintiff did not pay writ tax before clerk issued writ “was a matter between the clerk and the commonwealth, and ...

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Sours v. VIRGINIA BOARD FOR ARCHITECTS
516 S.E.2d 712 (Court of Appeals of Virginia, 1999)

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Bluebook (online)
516 S.E.2d 712, 30 Va. App. 313, 1999 Va. App. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sours-v-virginia-board-for-architects-vactapp-1999.