                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED



              SUNRISE ADULT DAY CARE CENTER, LLC
                                                                              MEMORANDUM OPINION*
              v.     Record No. 0160-14-2                                          PER CURIAM
                                                                                 OCTOBER 21, 2014
              COMMONWEALTH OF VIRGINIA,
               ex rel. DEPARTMENT OF MEDICAL
               ASSISTANCE SERVICES CITIZENS BOARD
               OF THE COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                            Clarence N. Jenkins, Jr., Judge

                               (Jerrod M. Smith; Jerrod Myron Smith & Associates, on brief), for
                               appellant.

                               (Mark R. Herring, Attorney General; Cynthia V. Bailey, Deputy
                               Attorney General; Kim F. Piner, Senior Assistant Attorney General;
                               Jennifer L. Gobble, Assistant Attorney General, on brief), for
                               appellee.


                     Sunrise Adult Day Care Center, LLC (Sunrise) appeals a ruling of the Circuit Court of

              the City of Richmond affirming the September 30, 2011 decision by the Department of Medical

              Assistance Services (DMAS). DMAS denied Sunrise’s requests for relief and affirmed the

              overpayment determination in the amount of $18,068.26. The trial court entered its order finding

              in favor of DMAS and dismissing the matter on August 16, 2013. As its three assignments of

              error on appeal, Sunrise contends: 1) the trial court erred in finding that any defect in the notice

              of the proceedings provided to Sunrise by DMAS was harmless; 2) the trial court erred in

              granting DMAS’s motion to exclude from the trial record an email message, which Sunrise

              attached to its amended petition for relief; and 3) the trial court erred in refusing to conduct a

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hearing upon its motion to vacate the August 16, 2013 judgment. DMAS moves to dismiss the

appeal, arguing the August 16, 2013 judgment became final and was no longer subject to the trial

court’s jurisdiction twenty-one days after its entry, pursuant to Rule 1:1, and Sunrise did not

timely note an appeal within thirty days after August 16, 2013, as required by Rule 5A:6.

        Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees . . . shall remain under

the control of the trial court and subject to be modified, vacated, or suspended for twenty-one

days after the date of entry, and no longer.”

                         “Neither the filing of post-trial or post-judgment motions,
                nor the court’s taking such motions under consideration, nor the
                pendency of such motions on the twenty-first day after final
                judgment is sufficient to toll or extend the running of the 21-day
                period prescribed by Rule 1:1 . . . . The running of the time . . .
                may be interrupted only by the entry, within the 21-day period
                after final judgment, of an order suspending or vacating the final
                order.”

D’Alessandro v. Commonwealth, 15 Va. App. 163, 166-67, 423 S.E.2d 199, 201 (1992) (quoting

School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323

(1989)).

        Rule 5A:6(a) provides: “No appeal shall be allowed unless, within 30 days after entry of

final judgment or other appealable order or decree, or within any specified extension thereof

granted by this Court under Rule 5A:3(a), counsel files with the clerk of the trial court a notice of

appeal . . . .” “The time period for filing the notice of appeal is not extended by the filing of a

motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is

modified, vacated, or suspended by the trial court pursuant to Rule 1:1 . . . .” Rule 5A:3(a).

“[T]he failure to file a notice of appeal with the clerk of the trial court . . . as required in Rule

5A:6(a) is jurisdictional . . . .” Johnson v. Commonwealth, 1 Va. App. 510, 512, 339 S.E.2d 919,

920 (1986).



                                                  -2-
       On September 5, 2013, Sunrise filed a “Motion and Memorancum [sic] to Vacate Court’s

Order Dismissing Petitioner’s Petition” (September motion). On October 31, 2013, Sunrise filed

an “Emergency Motion for Injunctive Relief” against DMAS (October motion). By order

entered on November 26, 2013, the trial court found that, pursuant to Rule 1:1, it had no

jurisdiction to consider the October motion and denied it. By order entered on December 27,

2013, the trial court found that, pursuant to Rule 1:1, it had no jurisdiction to consider the

September motion and denied it. Also on December 27, 2013, Sunrise filed a notice of appeal

from the trial court’s November 26, 2013 ruling and from the “failed response of the Court”

regarding the September motion. Sunrise filed a supplemental notice of appeal on January 23,

2014, stating Sunrise was appealing from the trial court’s orders of November 26, 2013 and

December 27, 2013.

       The first two assignments of error on appeal allege that the trial court’s August 16, 2013

decision was incorrect and that the trial court erred in refusing to consider certain evidence in

reaching that decision.1 These issues constitute challenges to the order entered by the trial court

on August 16, 2013. However, Sunrise did not file a notice of appeal from the August 16, 2013

order. Accordingly, we must dismiss the first two assignments of error.

       Sunrise filed timely notices of appeal from the November 26, 2013 and December 27,

2013 orders denying the September and October motions.2 However, as no order modifying,

vacating, or suspending the August 16, 2013 judgment was entered within twenty-one days

thereafter, the trial court properly found on November 26, 2013 and December 27, 2013 that it


       1
         On April 9, 2013, prior to the July 10, 2013 hearing on the matter, the trial court entered
an order granting DMAS’s motion to strike from the record several exhibits attached to Sunrise’s
amended petition for relief, including the email message.
       2
         Although it was filed on the thirty-first day after the November 26, 2013 order, the
December 27, 2013 notice of appeal is deemed timely filed because the filing deadline was a
date on which the trial court was closed. See Code § 1-210.
                                                -3-
had no jurisdiction to consider the September and October motions.3 See Rule 1:1. The trial

court did not err in failing to conduct a hearing on a matter over which it lacked jurisdiction.

Therefore, we summarily affirm Sunrise’s appeal from the November 26, 2013 and December

27, 2013 orders because the facts and legal contentions are adequately presented in the materials

before the Court and argument would not aid the decisional process. See Code § 17.1-403; Rule

5A:27. See also Locklear v. Commonwealth, 46 Va. App. 488, 499, 618 S.E.2d 361, 367 (2005)

(affirming the trial court’s denial of motions raised more than twenty-one days after entry of

final judgment).

       For the foregoing reasons, we grant in part DMAS’s motion to dismiss the appeal with

regard to assignments of error 1 and 2, and affirm the decision of the trial court challenged in

assignment of error 3.

                                                             Dismissed in part and affirmed in part.




       3
         Sunrise contends that consideration of its motion to vacate was not barred by Rule 1:1
by virtue of Code § 8.01-428(D), which provides:

               This section does not limit the power of the court to entertain at
               any time an independent action to relieve a party from any
               judgment or proceeding, or to grant relief to a defendant not served
               with process as provided in § 8.01-322, or to set aside a judgment
               or decree for fraud upon the court.

Neither the September nor the October motion was an “independent action” requesting relief
based upon fraud. See McEwen Lumber v. Lipscomb Bros. Lumber, 234 Va. 243, 248, 360
S.E.2d 845, 848 (1987) (for purposes of Code § 8.01-428, “a motion filed as a part of the case in
which the judgment order was entered is not an ‘independent action’ to relieve a party from a
judgment”). Thus, the exception to Rule 1:1 provided by Code § 8.01-428(D) was inapplicable
here.
                                             -4-
