Debra C. Jones v. Virginia Employment Comm. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Bray and Annunziata
DEBRA C. JONES
v. Record No. 0717-95-4 MEMORANDUM OPINION *
PER CURIAM
VIRGINIA EMPLOYMENT COMMISSION AUGUST 29, 1995
AND
CREATIVE PLAY SCHOOL, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
(Claude D. Convisser, on brief), for appellant.
(James S. Gilmore, III, Attorney General; Paul S.
Stahl, Assistant Attorney General; Lisa J. Rowley,
Assistant Attorney General; John B. Sternlicht;
Assistant Attorney General, on brief), for appellee
Virginia Employment Commission.
No brief for appellee Creative Play School, Inc.
Debra C. Jones appeals the decision of the circuit court
granting the motion of the Virginia Employment Commission (VEC)
to dismiss her appeal. Jones contends that the circuit court
erred when it ruled that she had failed to file an appeal
satisfying the requirements of Code § 60.2-625. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. Rule 5A:27.
"On appeal, the judgment of the trial court is presumed
correct. The burden is on the party who alleges reversible error
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to show by the record that reversal is the remedy to which he is
entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404
S.E.2d 384, 387 (1991). The judgment of the trial court will not
be disturbed on appeal unless it is plainly wrong or without
evidence to support it. Box v. Talley, 1 Va. App. 289, 293, 338
S.E.2d 349, 351 (1986).
Code § 60.2-625(A) provides, in pertinent part, as follows:
Within ten days after the decision of
the [VEC] upon a hearing pursuant to
§ 60.2-622 has become final, any party
aggrieved who seeks judicial review shall
commence an action in the circuit court of
the county or city in which the individual
who filed the claim was last employed. In
such action against the [VEC], the [VEC]
and any other party to the administrative
procedures before the [VEC] shall be named
a defendant in a petition for judicial
review.
When, as here, "the legislature has prescribed limitations within
which the right of appeal may be exercised, such limitations are
exclusive, and the court cannot modify or enlarge them without
express statutory authority." Blankenship v. Virginia
Unemployment Compensation Comm'n, 177 Va. 250, 254, 13 S.E.2d
409, 411 (1941). "It is well settled that '[w]hen the word
"shall" appears in a statute it is generally used in an
imperative or mandatory sense.'" Mayo v. Commonwealth, 4 Va.
App. 520, 523, 358 S.E.2d 759, 761 (1987) (citation omitted).
Thus, Jones was required to name her former employer, who had
been a "party to the administrative procedures before the [VEC],"
as a defendant in her appeal to the circuit court.
2
In an affidavit submitted to the circuit court in support of
her Motion for Reconsideration, Jones alleged that she had
"caused to be submitted . . . a petition" naming her former
employer as a defendant. The affidavit, however, purported to
describe what was said to and by Jones' agent and therefore was
hearsay. "[H]earsay affidavits are not admissible in support of
a motion for a new trial." Commercial Union Ins. Co. v.
Moorefield, 231 Va. 260, 265, 343 S.E.2d 329, 333 (1986).
Legal evidence is that statement made under
oath before a properly constituted tribunal
or officer. The affidavit . . . related to
matters not in evidence, or of record in
the case. It had no evidential value, save
to serve notice of the possible existence
of the matters alleged. . . . In such a
hearing hearsay evidence in the form of an
affidavit is no more admissible than in a
trial of the case itself.
Kearns v. Hall, 197 Va. 736, 741, 91 S.E.2d 648, 652 (1956).
Although Jones submitted the affidavit in conjunction with a
motion for reconsideration rather than a motion for a new trial,
the principle espoused in Moorefield and Kearns is nonetheless
applicable. Thus, Jones' affidavit was insufficient evidence
before the circuit court to support Jones' contention that she
filed a petition satisfying the requirements of Code § 60.2-622.
Therefore, we cannot say that the trial court's decision
that Jones failed to file an appeal satisfying the requirements
of Code § 60.2-622 was plainly wrong or without evidence to
support it. Accordingly, the decision of the circuit court is
summarily affirmed.
3
Affirmed.
4