Clark v. Virginia Marine Resources Com'n

• Decision Date: 08 December 2009
• Docket Number: Record No. 0925-09-1.
• Citation: 685 S.E.2d 863,55 Va. App. 328
• Parties: Charles CLARK, Jane Clark, William D. Frierson, III, Grace A. Frierson, Carmen Infantino, Gwen Infantino, Robert T. Larned, Nancy Russel Larned, George S. Loder, Elisabeth B. Martingayle, Barbara L. Matacia, Alexander McArthur, Barbara McArthur, Betty Jean McMurran, Nicholas S. Michaels, Patsy C. Michaels, Bruce B. Mills, Bradley Nott, Jane Nott, Charles C. Payne, Carolyn C. Payne, Heather B. Richardson and Noel Briddell Simmons v. VIRGINIA MARINE RESOURCES COMMISSION and City of Virginia Beach.
• Court: Virginia Court of Appeals

685 S.E.2d 863

55 Va. App. 328

Charles CLARK, Jane Clark, William D. Frierson, III, Grace A. Frierson, Carmen Infantino, Gwen Infantino, Robert T. Larned, Nancy Russel Larned, George S. Loder, Elisabeth B. Martingayle, Barbara L. Matacia, Alexander McArthur, Barbara McArthur, Betty Jean McMurran, Nicholas S. Michaels, Patsy C. Michaels, Bruce B. Mills, Bradley Nott, Jane Nott, Charles C. Payne, Carolyn C. Payne, Heather B. Richardson and Noel Briddell Simmons v. VIRGINIA MARINE RESOURCES COMMISSION and City of Virginia Beach.

Record No. 0925-09-1.

Court of Appeals of Virginia, Richmond.

December 8, 2009.

Kevin E. Martingayle (Stallings & Bischoff, P.C., on briefs), Virginia Beach, for appellants.

David C. Grandis, Assistant Attorney General (William C. Mims, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General; Carl Josephson, Senior Assistant Attorney General, on brief), for appellee Virginia Marine Resources Commission.

Natalie P. Mann, Assistant City Attorney (Mark Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney, on brief), for appellee City of Virginia Beach.

Present: FRANK, PETTY and McCLANAHAN, JJ.

ROBERT P. FRANK, Judge.

Charles Clark and his 22 co-appellants appeal a circuit court order dismissing their appeal from the Virginia Marine Resources Commission ("the Commission"). Appellants contend the circuit court erred in dismissing the appeal because their petition for appeal did not contain allegations sufficient to demonstrate that they have legal standing to appeal the Commission's decision. Appellants also claim the circuit court erred in rejecting and overruling their motion for default/summary judgment and in refusing to allow them to file an amended petition. For the reasons stated, we reverse and remand.

BACKGROUND

Because this appeal is limited to the sufficiency of the pleadings, we need only recite those facts germane to the issue before us.

On May 27, 2008, the Commission conducted a hearing on an application from the City of Virginia Beach ("the City") to install a new stormwater outfall. Nearby property owners protested the project. Nevertheless, the Commission unanimously approved the project.

Appellants timely appealed the Commission's decision to the Virginia Beach Circuit Court on June 24, 2008, pursuant to Rule 2A:4. Appellants filed a petition for appeal on July 23, 2008. The Commission's hearing transcript was also filed on that date.

The petition for appeal referred to the May 27 hearing regarding the City's request to install a new stormwater outfall line, and it stated that the Commission "made decisions adverse and/or objectionable to appellants, giving rise to this appeal." The petition for appeal also specified seven assignments of error and offered six reasons why the Commission's decisions were unlawful. Appellants requested that the circuit court rule that there was insufficient evidence in the record to sustain the findings of the Commission, and sought that the Commission's approval of the City's request to install the new outfall line be reversed.

On August 18, 2008, the Commission and the City filed responsive pleadings requesting, inter alia, that the claims of some or all of the appellants be dismissed for lack of legal standing. The Commission also filed a motion to strike portions of appellants' petition for appeal. Appellants later filed an "Objection to VMRC Agency Record and Motion to Supplement and/or Hold an Evidentiary Hearing" and a "Motion for Default/Summary Judgment."

Appellants advised the circuit court that the Commission record had not yet been filed. The Commission responded that the record would be filed if its dispositive motions were not granted by the circuit court.¹

On February 17, 2009, the circuit court conducted a hearing on the motions. In its order of April 1, 2009, the circuit court opined, "[a]ppellants' Petition for Appeal does not contain allegations sufficient to show that they have standing in this case, and the Court is of the view that [a]ppellants cannot assert a sufficient basis to establish standing in this case."² The circuit court further found:

In view of the foregoing rulings, and for the reasons stated from the bench, the Court finds that it is not necessary to decide the Commission's Motion to Strike the Appeal of Specified Appellants, nor the remaining motions enumerated as numbers 2 and 3, above,³ nor the other grounds for dismissal raised by the Commission in its Motion to Dismiss the Appeal.

The circuit court denied appellants' motion for default/summary judgment. In denying the motion, the circuit court found:

It seems to me that the law is that the record should be filed just as the rule says. You should file it as promptly as the rule says. But that doesn't mean that if it isn't filed that the commission is in default and therefore the case is over in favor of appellants. It would be necessary for an appellant to show in no uncertain terms, in no uncertain terms that the appellant was prejudiced to the point that the appellant was unable to defend against these preliminary motions. And that is not the case in this case.

The circuit court also granted the Commission's motion to dismiss the appeals, and denied appellants' request for leave to amend their petition for appeal. This appeal followed.

ANALYSIS

Standing is a "preliminary jurisdictional issue having no relation to the substantive merits of an action." Andrews v. American Health & Life Ins. Co., 236 Va. 221, 226, 372 S.E.2d 399, 402 (1988). Standing is not concerned with whether or not a party will ultimately prevail on the legal merits of an issue but rather with the ability of a party to seek redress through the courts in the first place by demonstrating sufficient connection to, and actual or potential harm from, the law or action challenged.⁴ The question of whether or not a litigant has standing is a question of law subject to de novo review on appeal. See Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 845 (2008).⁵

The General Assembly provides a procedure for court review of certain actions taken by administrative agencies through the Administrative Process Act ("the Act"). Code § 2.2-4026. When the Act authorizes judicial review, it must be conducted "`in the manner provided by the rules of the Supreme Court of Virginia.'" Christian v. Va. Dep't of Soc. Servs., 45 Va.App. 310, 314, 610 S.E.2d 870, 872 (2005) (quoting Code § 2.2-4026). Part 2A of the Rules of the Virginia Supreme Court governs such appeals. Rule 2A:4(b) establishes the requirements for petitions for appeal and states, "[t]he petition for appeal shall designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested."

"Generally, rules governing appeal procedures are mandatory and `compliance with them is necessary for the orderly, fair, and expeditious administration of justice.'" Mayo v. Dep't of Commerce, 4 Va.App. 520, 522, 358 S.E.2d 759, 761 (1987) (quoting Condrey v. Childress, 203 Va. 755, 757, 127 S.E.2d 150, 152 (1962)). However, Rule 2A:4 makes no mention that standing must be pled. The Commission argues that this matter should be dismissed because the petition for appeal failed to allege sufficient grounds to establish standing. This argument should be addressed to the merits of the appeal, not the petition for appeal.

Rule 2A:4 sets forth the only requirements for a legally sufficient petition for appeal. The Rule is silent as to any requirement that the petition set forth the legal basis for standing. We should give the language of the Rule its plain meaning. See Davenport v. Little-Bowser, 269 Va. 546, 555 611 S.E.2d 366, 371 (2005); see also Mayo, 4 Va.App. at 523, 358 S.E.2d at 761 (equating the interpretation of rules with the interpretation of statutes).

In Mayo, appellant asserted that under a "reasonable construction of the Rules of the Supreme Court" the circuit court could extend Rule 2A:4's time limitation. This Court disagreed, stating:

[t]he absence of an express provision in Part Two A of the Rules empowering the circuit court to extend the time limits prescribed in Rule 2A:4 is persuasive evidence that no such provision applies to petitions for circuit court review of administrative agency decisions. Furthermore, to hold . . . that a motion to extend the time limit of Rule 2A:4 constitutes "further proceedings" under Rule 2A:5 would circumvent the clear intent of the scheme laid down in the rules.

4 Va.App. at 523-24, 358 S.E.2d at 761-62.

Similarly, in this case, the failure of Rule 2A:4 to require allegations of standing in the petition for appeal is persuasive evidence that no such requirement exists. If Rule 2A:4 was intended to require such an allegation, the Rule would have so stated. It is not the role of this Court to amend the Rules by adding additional requirements to Rule 2A:4.

The Commission argues that appellants' pleading was deficient and therefore fatal to their appeal. In support of this contention, the Commission cites only Ted Lansing Supply Co. v. Royal Aluminum & Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 229-30 (1981), which states that "no court can base its judgment or decree upon facts not alleged or upon a right which has not been pleaded and claimed." However, the holding in that case is clearly distinguished from the matter now before this Court.

In Ted Lansing, appellant filed motions for judgment against appellee for failure to pay its account. Appellee filed a counterclaim for breach of an express warranty. Appellant then moved for summary judgment on the ground that no express warranty had been made or breached. The trial court sustained appellant's motion, but sua sponte interjected an implied warranty of fitness or merchantability and submitted the case to the jury on that theory. Appellee...