Alexandria Redev. & Housing Auth. v. Walker

PRESENT: All the Justices
ALEXANDRIA REDEVELOPMENT
AND HOUSING AUTHORITY OPINION BY
JUSTICE D. ARTHUR KELSEY
v. Record No. 141085 June 4, 2015
LORAIN WALKER
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
James C. Clark, Judge
In the circuit court, Lorain Walker filed a complaint
alleging that she had been improperly discharged by the
Alexandria Redevelopment and Housing Authority ("ARHA"). The
circuit court denied her requests for reinstatement and money
damages but held that she was entitled to have her claims
arbitrated under ARHA's grievance procedure. ARHA appeals,
arguing that the circuit court misapplied Code § 15.2-1507.
We agree and reverse.
I.
Walker worked for ARHA for several years before being
discharged on September 23, 2010, for "grossly" violating
ARHA's "absenteeism and tardiness policies." Walker filed a
grievance seeking further review of her discharge. ARHA's
grievance policy included various stages of review that, when
applicable and timely requested, culminated in a hearing by an
independent arbitrator.
After Walker's grievance passed the initial stages of
review, ARHA informed her in February 2011 that a panel of
potential arbitrators had been requested from the Federal
Mediation and Conciliation Service ("FMCS"). ARHA explained
to Walker that when the parties received the names on the
panel, she must participate in alternating strikes until a
single arbitrator was chosen. Under ARHA's grievance policy,
this process must be accomplished "[w]ithin thirty days after
receipt of the panel."
After ARHA had submitted a request to FMCS for a panel of
arbitrators, it followed up with Walker by emails to her on
February 7 and 15, 2011. Without addressing the panel of
potential arbitrators, Walker replied via her smartphone on
February 15: "I am seeking counsel so I can go to court."
(Emphasis added.) Within minutes of Walker's message, ARHA's
counsel replied, asking her to clarify whether her reference
to court meant that she was "no longer interested in
arbitration of [her] discharge." Walker never replied to this
question.
Several weeks later, ARHA reminded Walker that the
thirty-day period would expire on March 17, 2011. If she was
still interested in submitting her grievance to arbitration,
ARHA stated, Walker needed to participate in the arbitrator
selection process, which ARHA offered to complete with her by
telephone if she would provide her phone number and an
acceptable time to speak. If Walker continued to be
2
unresponsive, ARHA warned her that it would conclude that she
was "no longer interested in pursuing arbitration."
After the March 17, 2011 deadline passed without any
response from Walker, ARHA informed her that "effective
immediately ARHA will treat your request for arbitration as
withdrawn." Nevertheless, the next day Walker sent a cryptic
email from her smartphone stating simply that she was
"interested in arbitration" and providing her phone number.
She offered no explanation, however, for her failure to
participate in the arbitrator selection process prior to the
expiration of the grievance procedure's thirty-day deadline.
Four days after the deadline to select an arbitrator,
Walker wrote to ARHA objecting, for the first time, to the use
of emails to communicate - although she had at various times
used a smartphone to reply to emails ARHA had sent. In a
separate letter of the same date, she stated that she had not
received a copy of the roster of prospective arbitrators. In
reply, ARHA notified her that her arbitration request had
already been deemed withdrawn given her failure to respond by
the thirty-day deadline, and ARHA further noted that she had
never before raised this issue although she had numerous
opportunities to do so. Walker made no response.
Nearly a year later, Walker filed a complaint in circuit
court in February 2012, claiming that ARHA, "through its
3
counsel," had "unilaterally determined that the Complainant
had withdrawn her request for arbitration" of her grievance.
Code § 15.2-1507(A)(7)(b), however, required Walker to appeal
"within 30 days of the compliance determination." Walker
ultimately nonsuited that action.
Walker re-filed suit against ARHA in February 2013
repeating the same allegations previously asserted in the
nonsuited complaint. In addition to requesting an award of
$300,000 in money damages, she requested an injunction
ordering ARHA to reinstate her to her prior position. Neither
her initial nor amended complaints in this action specifically
requested a judicial order compelling arbitration of her
grievance.
On ARHA's motion for summary judgment, the circuit court
denied Walker's claim for money damages and her request for
reinstatement. The court, however, ordered ARHA to arbitrate
Walker's grievance, opining that it believed that the parties
had a "miscommunication . . . as opposed to a compliance
issue." "I may be wrong," the judge explained, "but I'm
sticking with it." ARHA appeals, arguing that the court erred
as a matter of law.
II.
Before addressing the merits of this appeal, we must
first answer Walker's contention that the appeal should be
4
dismissed because ARHA's notice of appeal was not timely
filed.
Rule 5:9(a) requires a notice of appeal to this Court to
be filed in the circuit court within thirty days after the
entry of the final or otherwise appealable order. ARHA relied
upon Federal Express to deliver the notice of appeal in this
case. The courier placed the notice of appeal in the hands of
a clerk in the land records department of the clerk's office
of the circuit court on May 15, 2014, exactly thirty days
after the entry of the order ARHA seeks to appeal.
The clerk, however, did not stamp the notice of appeal as
"filed" until the next day, May 16, 2014, thus indicating that
ARHA's notice of appeal was untimely under Rule 5:9(a). When
ARHA brought this to the attention of the circuit court and
produced uncontroverted evidence of timely filing, the court
entered an order directing the clerk to correct the docket to
reflect that the notice of appeal was in fact filed on May 15,
2014. Walker did not appeal the trial court's corrective
order and instead filed a motion to dismiss ARHA's appeal.
In her motion to dismiss, Walker argues that the circuit
court's order correcting the filing date was erroneous as a
matter of law because a written document is filed only when
the clerk of court stamps it as filed. ARHA contends that we
need not consider Walker's argument because she did not
5
challenge the court's correction order by filing a cross-
appeal or by assigning cross-error in her brief in opposition.
See Rule 5:18(c).
On this subject, the governing principles are easy to
repeat but sometimes difficult to apply. No cross-appeal is
necessary when an appellee seeks to support a judgment on
alternative legal grounds, including those expressly rejected
by the trial court and those raised for the first time on
appeal. See Perry v. Commonwealth, 280 Va. 572, 581, 701
S.E.2d 431, 437 (2010) (citing Washington v. Confederated
Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20
(1979), and United States v. American Ry. Express Co., 265
U.S. 425, 435 (1924)); accord Jennings v. Stephens, 135 S. Ct.
793, 798 (2015). 1 Cross-appeals are necessary only when an
appellee seeks to modify or otherwise change a favorable
judgment "with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary."
Jennings, 135 S. Ct. at 798 (quoting American Ry. Express Co.,
265 U.S. at 435). 2
1
See also Reynolds v. American Nat'l Red Cross, 701 F.3d
143, 155-56 (4th Cir. 2012). This conclusion follows from the
axiom that a "prevailing party seeks to enforce not a [trial]
court's reasoning, but the court's judgment." Jennings, 135
S. Ct. at 799 (emphasis in original).
2
Cross-error in Virginia practice is treated exactly the
same. The only difference between the two is that the
6
Because we strive to decide cases on the "best and
narrowest grounds available," McGhee v. Commonwealth, 280 Va.
620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010) (quoting Air
Courier Conference v. American Postal Workers Union, 498 U.S.
517, 531 (1991) (Stevens, J., concurring)), 3 we need not
determine whether Walker's argument should have been asserted
by way of a cross-appeal or an assignment of cross-error.
Here, settled principles of law defeat Walker's argument on
the merits.
When not filed electronically, a pleading is filed when
it is physically delivered to the clerk of court. Rule 3:3
("The clerk shall receive and file all pleadings when
tendered." (emphasis added)); Mears v. Mears, 206 Va. 444,
446, 143 S.E.2d 889, 890 (1965) (holding that a paper "is
'filed' when delivered to the clerk by the agent selected by
counsel"); accord W. Hamilton Bryson, Virginia Civil Procedure
§ 6:01, at 6-3 (4th ed. 2005). 4
assignment of cross-error, unlike a freestanding cross-appeal,
is jurisdictionally dependent on the initiating appeal. If
the appellant's petition for appeal is denied, assignment of
cross-error by the appellee will not be granted or considered
further by the Court. See Rule 5:18(c)(4)(i).
3
See also Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d
924, 925 (2007) (Kinser, J., concurring) (quoting with
approval Luginbyhl v. Commonwealth, 48 Va. App. 58, 64,
628 S.E.2d 74, 77 (2006) (en banc)).
4
Traditionally, the term "pleadings" included only "the
written statements of the positions, i.e., the claims and the
7
As one court succinctly put the point:
The word "filed" . . . is, as applied to
court proceedings, a word of art, having a
long established and well understood
meaning . . . . It requires of one
filing . . . merely the depositing of the
instrument with the custodian for the
purpose of being filed. . . . [I]t
charges him with no further duty, subjects
him to no untoward consequences as a
result of the failure of the custodian to
do his duty, by placing the instrument on
the file, or as in modern practice placing
his file mark on the instrument.
Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939). 5
It is true that a circuit court clerk's "filed" stamp is
usually conclusive evidence of the filing date, see Mears, 206
Va. at 445, 143 S.E.2d at 890, but that does not render the
timing of the filing incontrovertible. When a party contests
defenses, of the parties to the litigation." Bryson, supra, §
6:02[1], at 6-4. A notice of appeal technically would not fit
within the scope of the traditional definition. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 742 (1991) (characterizing
a notice of appeal as "a purely ministerial document" (citing
Rule 5:9)); Mears, 206 Va. at 447, 143 S.E.2d at 891
(referring to it as a "paper" to be filed with the court).
Even so, "there are other definitions of what a pleading is
for different purposes in Virginia law," Kent Sinclair & Leigh
B. Middleditch, Jr., Virginia Civil Procedure § 11.6, at 873
(6th ed. 2014), and the distinctions are immaterial for the
purpose of determining when a notice of appeal has been filed.
5
Cf. Rules 5:5(c), 5A:3(d) (governing appellate filings).
The policy objectives for these rules are "(1) to circumvent
the inconvenience of having to personally appear in the
Clerk's office to effect a filing, and (2) to protect a party
from those delays which often occur in the regular dispatch of
mail and naturally are outside a party's control." Reese v.
Wampler Foods, Inc., 222 Va. 249, 252-53, 278 S.E.2d 870, 872
(1981).
8
the clerk's date of filing, the circuit court retains the
authority under Code § 8.01-428(B) to take evidence and to
make factual findings approving or disapproving the clerk's
filing date. A litigant, after all, "should not be denied a
review simply because of an error made by a ministerial
officer of the court." Leigh v. Commonwealth, 192 Va. 583,
587, 66 S.E.2d 586, 589 (1951). 6
That is just what happened here. ARHA brought the
discrepancy to the attention of the circuit court and
irrefutably established the date of physical delivery and,
thus, the true date of filing. The circuit court prudently
issued a correction order so that the record would "speak the
truth." Jefferson v. Commonwealth, 269 Va. 136, 140, 607
S.E.2d 107, 110 (2005); see also Council v. Commonwealth, 198
Va. 288, 292-93, 94 S.E.2d 245, 248 (1956) (clarifying that
"the purpose of a nunc pro tunc entry is to correct mistakes
of the clerk . . . so as to make the record show what actually
took place"). 7 Because the correction order merely confirms
6
See also Avery v. County Sch. Bd., 192 Va. 329, 331, 64
S.E.2d 767, 769 (1951) (recognizing that "[t]his court has
always exercised its discretion, so far as it legally could,
to protect litigants against the consequences of the failure
of a public officer to perform ministerial duties"); Brame v.
Guarantee Fin. Co., 139 Va. 394, 398, 124 S.E. 477, 478
(1924).
7
See also Rule 1:9 ("All steps and procedures in the
clerk's office touching the filing of pleadings and the
9
the factual timeliness of ARHA's notice of appeal, we deny
Walker's motion to dismiss. 8
III.
A. The ARHA Grievance Procedure
Under Virginia law, a local redevelopment and housing
authority has the option to include its employees in the
locality's grievance procedure 9 or to adopt its own procedure
specifically applicable to the authority's employees. See
Code § 15.2-1507(A)(4). ARHA elected to adopt its own
procedure.
The ARHA grievance procedure takes a grievant through
various, informal stages of dispute resolution. Step 1
involves a written response by ARHA to the assertions in the
grievance. If dissatisfied with this response, the grievant
may challenge it in Step 2, which includes a review by the
department director. Step 3 involves a written appeal to
maturing of suits or actions may be reviewed and corrected by
the court."); cf. Martin P. Burks, Common Law & Statutory
Pleading & Practice § 50, at 108 (T. Munford Boyd, ed., 4th
ed. 1952) (noting that a clerical "mistake" of the clerk
"cannot prejudice" the litigants).
8
This appeal does not require us to address whether, and
to what extent, the failure to tender certain fees renders a
physically delivered pleading incapable of being filed. See
generally Landini v. Bil-Jax, Inc., Record No. 140591 (Jan.
30, 2015) (unpublished).
9
Under Code § 15.2-1507(A), a locality may adopt its own
employee grievance procedure consistent with Code § 15.2-1506
or be deemed to have adopted the grievance procedure
applicable to state employees, Code § 2.2-3000 et seq.
10
ARHA's chief executive officer. The final stage initiates a
formal arbitration hearing in which the arbitrator has
authority to enter a binding determination.
Both parties have compliance duties during the final
stage. The arbitration procedure details the process of
selecting an arbitrator, scheduling a hearing, conducting an
evidentiary hearing, and obtaining a ruling from the
arbitrator. The first compliance duty is selecting an
arbitrator. The grievance procedure specifies that both
parties shall pick an arbitrator by striking names from a
panel of potential arbitrators provided by the independent
arbitration service. This task must be completed "[w]ithin
thirty days" of receiving the panel. After the process of
striking the names from the panel leaves one arbitrator
remaining, the arbitration may be scheduled.
B. Judicial Review of Compliance Determinations
Judicial review of the grievance procedure is sharply
limited by Code § 15.2-1507. With respect to procedural
noncompliance, the statute provides:
After the initial filing of a written
grievance, failure of either party to
comply with all substantial procedural
requirements of the grievance procedure,
including the panel or administrative
hearing, without just cause shall result
in a decision in favor of the other party
on any grievable issue, provided the party
11
not in compliance fails to correct the
noncompliance within five workdays of
receipt of written notification by the
other party of the compliance violation.
Code § 15.2-1507(A)(7)(a) (emphasis added). The chief
administrative officer or his designee "shall determine
compliance issues." Code § 15.2-1507(A)(7)(b). If the
grievant objects to the compliance determination, she may seek
judicial review "by filing [a] petition with the circuit court
within 30 days of the compliance determination." Id.
C. The Circuit Court's Holding
In this case, Walker did not request an order of
arbitration in either her complaint or amended complaint.
Instead, she sought money damages and an injunction
reinstating her to her former position. Though this alone
would ordinarily be enough to put in question the circuit
court's arbitration order, 10 ARHA limits its appellate
challenge of the arbitration order to the circuit court's
10
"'Pleadings are as essential as proof, and no relief
should be granted that does not substantially accord with the
case as made in the pleading.'" Ted Lansing Supply Co. v.
Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141, 277 S.E.2d
228, 229-30 (1981) (quoting Bank of Giles Cnty. v. Mason, 199
Va. 176, 180, 98 S.E.2d 905, 907 (1957)). Therefore, "'[n]o
court can base its decree upon facts not alleged, nor render
its judgment upon a right, however meritorious, which has not
been pleaded and claimed.'" Id. at 1141, 277 S.E.2d at 230
(quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207,
181 S.E. 521, 525 (1935)).
12
failure to apply the thirty-day appeal deadline imposed by
Code § 15.2-1507(A)(7)(b).
Both parties agree that, in March 2011, ARHA declared
Walker to be noncompliant with the grievance procedure and
deemed her request for arbitration to be withdrawn. See,
e.g., Appellee's Br. at 6; Oral Argument Audio at 2:35 to
3:00. Walker specifically alleged that ARHA, "through its
counsel," made the compliance determination. 11 Walker,
however, waited nearly a year to file her first complaint
seeking judicial review - far beyond the thirty-day deadline
imposed by Code § 15.2-1507(A)(7)(b).
The circuit court decided not to apply the thirty-day
deadline on the ground that this case involved a mere
"miscommunication between the parties as opposed to a
compliance issue." We do not understand the distinction.
Walker claimed that she was confused about the arbitrator
selection process and that her confusion resulted in her
alleged noncompliance. She did not assert, nor could she,
given her pleading, that ARHA did not declare her noncompliant
and deem her arbitration request to be withdrawn. It was just
11
At oral argument on appeal, Walker's counsel conceded
that ARHA's counsel acted as the designee of ARHA's chief
executive officer for purposes of making this determination.
See Oral Argument Audio at 20:25 to 20:57.
13
this determination that Walker attacked in her amended
complaint.
The circuit court's reasoning conflated the cause of
Walker's noncompliance (an alleged miscommunication) with its
effect (a determination triggering the thirty-day window to
petition the circuit court for review). The two are
conceptually separate. The statutory deadline could not be
set aside on the ground that the circuit court believed that
Walker had a valid excuse for being noncompliant. If that
were enough, the deadline would be pointless - for it would
only impose a procedural bar on challenges destined to fail on
the merits anyway. See generally Winslow v. Commonwealth, 62
Va. App. 539, 546, 749 S.E.2d 563, 567 (2013) ("It is never
enough for the defendant to merely assert a winning argument
on the merits - for if that were enough procedural default
'would never apply, except when it does not matter.'"
(citation omitted)). 12
12
Finally, we note that Walker did not file in the
circuit court an "application" seeking to enforce a
contractual arbitration right under the Virginia Uniform
Arbitration Act, specifically, Code § 8.01-581.02(A). Nor did
the circuit court issue an interlocutory order compelling
arbitration under that statute or "stay" the proceeding under
Code § 8.01-581.02(D) for purposes of retaining jurisdiction
under Code §§ 8.01-581.010 and 8.01-581.011. Instead, the
circuit court issued a "FINAL ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY JUDGMENT," stating that
"the proceedings in this matter are otherwise terminated and
this order is Final." Neither Walker nor ARHA questions our
14
IV.
We deny Walker's motion to dismiss, finding no error in
the circuit court's order correcting the filing date of ARHA's
notice of appeal. We hold that the circuit court erred,
however, in ordering ARHA to arbitrate Walker's grievance. We
thus reverse and enter final judgment in favor of ARHA.
Reversed and final judgment.
appellate jurisdiction over the final order entered in this
case. Nor do we. A circuit court order cannot create its own
immunity to appeal by granting relief not requested in the
pleadings and by entering a final order compelling arbitration
outside the scope of the Virginia Uniform Arbitration Act.
Cf. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244, 672
S.E.2d 877 (2009) (holding that an interlocutory decree
ordering arbitration pursuant to the Virginia Uniform
Arbitration Act is not an appealable final order under Code §
8.01-670(A)(3) and not an appealable interlocutory order under
Code § 8.01-581.016).
15