Keith Kessler v. Dennis Smith, Director, DMAS , 31 Va. App. 139 ( 1999 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Annunziata and Senior Judge Duff
    Argued at Alexandria, Virginia
    KEITH KESSLER
    OPINION BY
    v.   Record No. 2397-98-4                   JUDGE CHARLES H. DUFF
    DECEMBER 7, 1999
    DENNIS SMITH, DIRECTOR,
    DEPARTMENT OF MEDICAL
    ASSISTANCE SERVICES
    FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
    Herman A. Whisenant, Jr., Judge
    Lewis E. Gelobter (Emily J. Kaufmann; Legal
    Services of Northern Virginia, Inc., Public
    Benefits Unit, on brief), for appellant.
    Brian M. McCormick, Special Counsel for the
    Department of Medical Assistance Services
    (Mark L. Earley, Attorney General; Ashley L.
    Taylor, Jr., Deputy Attorney General;
    Siran S. Faulders, Senior Assistant Attorney
    General, on brief), for appellee.
    Keith Kessler (appellant) appeals the trial court's
    decision dismissing his appeal of a decision of a hearing
    officer for the Department of Medical Assistance Services
    ("DMAS").    Appellant contends the trial court erred in finding
    that the appeal was not properly filed.     We agree with
    appellant, and we reverse and remand.
    FACTS
    Appellant filed an appeal with DMAS concerning services he
    receives from that agency.    On May 5, 1998, the hearing officer
    issued a decision, and on May 26, 1998, appellant filed a notice
    of appeal of that decision in the trial court.   On June 25,
    1998, appellant filed a petition for appeal.    DMAS concedes the
    notice of appeal and the petition for appeal were timely filed.
    Also, on June 25, 1998, appellant's counsel faxed and mailed a
    copy of the petition for appeal to the director of DMAS (the
    "Director"), the named respondent in the appeal.
    On July 1, 1998, the trial court entered an order granting
    appellant permission to proceed in forma pauperis, thereby
    waiving the requirements that appellant pay the fees for filing
    the action and for service upon the Director.    The Director
    filed a motion to dismiss on July 15, 1998, contending
    appellant's petition for appeal failed to conform to Rule 2A:4
    because the petition was not served on the Director as mandated
    by that rule.   The Director contended that mailing the petition
    to him was insufficient to perfect service in accordance with
    the rules.
    On August 21, 1998, the clerk of the circuit court issued a
    subpoena in chancery for the Director.   On August 28, 1998, the
    trial court held a hearing on the Director's motion to dismiss.
    The trial court dismissed the case "for failure to perfect the
    appeal by a timely request for service on the Director as
    required by Rule 2A:4(a)."   An executed proof of service form
    dated September 1, 1998 is in the record and is stamped as filed
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    in the trial court's record on September 9, 1998.   The form
    indicates that the Director was served with the subpoena in
    chancery and a copy of the petition on September 1, 1998.
    ANALYSIS
    Rule 2A:4(a) provides:
    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.
    Thus, Rule 2A:4 required appellant to follow the steps
    provided in Rules 2:2 and 2:3 in order to have the petition
    served on the Director.
    Rule 2:2 provides:
    A suit in equity shall be commenced by
    filing a bill of complaint in the clerk's
    office. The suit is then instituted and
    pending as to all parties defendant thereto.
    The statutory writ tax and clerk's fees
    shall be paid before the subpoena in
    chancery is issued.
    The bill shall be captioned with the
    name of the court and the full style of the
    suit. The requirements of Code § 8.01-290
    may be met by giving the address or other
    data after the name of each defendant.
    It shall be sufficient for the prayer
    of the bill to ask for the specific relief
    sought, and to call for answer under oath if
    desired. Without more it will be understood
    that all the defendants mentioned in the
    caption are made parties defendant and
    required to answer the bill of complaint;
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    that proper process against them is
    requested; that answers under oath are
    waived, except when required by law; that
    all proper references, inquiries, accounts
    and decrees are sought; and that such other
    and further and general relief as the nature
    of the case may require and to equity may
    seem meet is prayed for and may be granted.
    No formal conclusion is necessary.
    Appellant timely filed the petition for appeal as required
    by Rule 2A:4(a).   The petition contained a certificate of
    service indicating the name and address of the Director and his
    attorney.   Relying on the language in the second sentence of the
    last paragraph of Rule 2:2, "[w]ithout more it will be
    understood that all the defendants mentioned in the caption are
    made parties defendant and . . . that proper process against
    them is requested," appellant contends that nothing more was
    required of him in order to fulfill the requirements of the
    rules and to perfect service on the Director.   Appellant argues
    that once the trial court entered the order granting him in
    forma pauperis relief, the clerk of the circuit court should
    have completed the necessary paperwork and forwarded the
    documents to the sheriff for service.
    However, the Director contends that, in accordance with
    Rules 2:2 and 2:3, an appellant was required to request that the
    clerk's office perfect service of the petition and to pay the
    service fee.   The Director asserts that, even though appellant
    was proceeding in forma pauperis, he was nevertheless required
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    to request service of process from the trial court clerk's
    office, which appellant did not do until one month after the
    trial court entered the July 1, 1998 in forma pauperis order and
    after the Director filed the motion to dismiss.
    Furthermore, the Director interprets Rule 2A:4(a) as
    requiring compliance with Rules 2:2 and 2:3 within the
    thirty-day time limit for filing a petition for appeal.    In
    other words, the Director contends that in order to have
    perfected service of the petition on him, within thirty days of
    filing the notice of appeal, appellant had to have requested the
    clerk's office to perfect service on the Director.   Moreover,
    the Director argues that the phrase in Rule 2:2 "[w]ithout more
    it will be understood . . . that proper service against them is
    requested" means that, once service is requested, it is
    requested against all of the named defendants.    The Director
    contends that the phrase does not mean that the clerk's office
    will automatically issue process when a bill of complaint or
    petition for appeal is filed.
    We agree with appellant's interpretation of Rule 2:2.
    "Where the language of a [rule] is clear and unambiguous,
    we are bound by the plain statement of legislative intent."
    Commonwealth v. Meadows, 
    17 Va. App. 624
    , 626, 
    440 S.E.2d 154
    ,
    155 (1994).   "We must 'take the words as written . . . .'"
    - 5 -
    White v. Commonwealth, 
    26 Va. App. 410
    , 412, 
    494 S.E.2d 896
    , 897
    (1998) (citation omitted).
    There are no ambiguities in the language of Rule 2:2.      Rule
    2:2 clearly states that once the bill of complaint is filed in
    the clerk's office, the suit is then brought into existence and
    is continuing as to all named defendants.    The rule further
    states:   "Without more it will be understood that all the
    defendants mentioned in the caption are made parties defendant
    and required to answer the bill of complaint; that proper
    process against them is requested . . . ."    (Emphasis added.)
    Thus, the rule clearly provides that once the bill of complaint
    is filed, proper process "is requested" against the named
    defendants.   The rule does not require that a party, after
    filing the bill of complaint, make a separate request for
    service of process.   Indeed, the rule specifically states that
    nothing more than the filing of a bill of complaint is required
    in order to request service of process.    Therefore, appellant
    complied with Rules 2:2 and 2A:4.   Accordingly, the trial court
    erred in dismissing appellant's appeal.
    Furthermore, the trial court's clerk's office issued the
    subpoena in chancery on August 21, 1998.    "The process of the
    courts in equity suits shall be a subpoena in chancery . . . ."
    Rule 2:4.   The record contains an executed proof of service form
    indicating that the Director was served with the subpoena in
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    chancery and a copy of the bill of complaint on September 1,
    1998.    Rule 2:4 provides, in pertinent part, that "[n]o decree
    shall be entered against a defendant who was served with process
    more than one year after the institution of the suit against
    him . . . ."    Because the suit was instituted on June 25, 1998,
    the Director was clearly served less than one year after the
    suit was instituted.    Thus, the Director was properly served in
    accordance with the rules, although service was perfected after
    the trial court dismissed the case.
    This case is distinguishable from Bendele v. Commonwealth,
    
    29 Va. App. 395
    , 
    512 S.E.2d 827
    (1999).    The sole issue
    presented in Bendele was whether "the trial court erred when it
    held that mailing a copy of the petition for appeal to the
    agency . . . satisf[ied] the notice requirements of the
    Administrative Process Act."     
    Id. at 396, 512
    S.E.2d at 828.    In
    deciding that question we held as follows:
    We conclude that the saving provisions
    of Code § 8.01-288 do not apply when the
    party mails a simple copy of the document to
    the opposing party rather than follow the
    requirements of Rule 2A:4. Because Code
    § 8.01-288 does not apply and because the
    appellant concedes that she did not comply
    with Rule 2A:4, the circuit court did not
    have jurisdiction to hear this
    administrative appeal.
    
    Id. at 400, 512
    S.E.2d at 829-30.     Thus, we decide today an
    issue not resolved by Bendele.
    - 7 -
    Because the trial court erred in dismissing appellant's
    appeal, we reverse the decision and remand the case to the
    circuit court for proceedings consistent with this opinion.
    Reversed and remanded.
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Document Info

Docket Number: 2397984

Citation Numbers: 31 Va. App. 139, 521 S.E.2d 774, 1999 Va. App. LEXIS 667

Judges: Duff

Filed Date: 12/7/1999

Precedential Status: Precedential

Modified Date: 11/15/2024