Clarence H. Carter, Commissioner,et al. v. Crabtree ( 1999 )

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."
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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
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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
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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
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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.
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