Alexandria Redevelopment & Hous. Auth. v. Walker, Record No. 141085.

• Citation: 772 S.E.2d 297, 290 Va. 150
• Case Date: June 04, 2015
• Court: Supreme Court of Virginia

290 Va. 150
772 S.E.2d 297

ALEXANDRIA REDEVELOPMENT AND HOUSING AUTHORITY
v.
Lorain WALKER.

Record No. 141085.

Supreme Court of Virginia.

June 4, 2015.

772 S.E.2d 298

Brian Steinbach (George B. Breen ; Epstein Becker & Green, on briefs), for appellant.

Herbert S. Rosenblum, Alexandria, for appellee.

Present: All the Justices.

Opinion

Opinion by Justice D. ARTHUR KELSEY.

290 Va. 153

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.

290 Va. 154

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 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

772 S.E.2d 299

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 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

290 Va. 155

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 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 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).

290 Va. 156

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, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979), and United States v. American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924) ); accord

772 S.E.2d 300

Jennings v. Stephens, –––U.S. ––––, 135 S.Ct. 793, 798, 190 L.Ed.2d 662 (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, 44 S.Ct. 560 ).²

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, 111 S.Ct. 913, 112 L.Ed.2d 1125 (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

290 Va. 157

by the agent selected by counsel”); accord W. Hamilton Bryson, Virginia Civil Procedure § 6:01, at 6–3 (4th ed.2005).⁴

As...