                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia


BURTON O. SOURS, JR.,
 FAIRFAX COUNTY SURVEYOR
                                               OPINION BY
v.   Record No. 1716-98-4                 JUDGE LARRY G. ELDER
                                              JULY 27, 1999
VIRGINIA BOARD FOR ARCHITECTS,
 PROFESSIONAL ENGINEERS, LAND
 SURVEYORS AND LANDSCAPE ARCHITECTS,
 AND HAROLD A. LOGAN


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                  Arthur B. Vieregg, Jr., Judge

          Karen J. Harwood, Deputy County Attorney
          (David P. Bobzien, County Attorney; Jan L.
          Brodie, Senior Assistant County Attorney, on
          briefs), for appellant.

          William A. Diamond, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Richard B. Zorn, Senior Assistant Attorney
          General, on brief), for appellee Virginia
          Board for Architects, Professional
          Engineers, Land Surveyors and Landscape
          Architects.

          No brief or argument for appellee Harold A.
          Logan.


     Burton O. Sours, Jr., (appellant) appeals from a ruling of

the Fairfax County Circuit Court dismissing his appeal from a

decision issued by the Virginia Board for Architects,

Professional Engineers, Land Surveyors and Landscape Architects

(the Board) under the Virginia Administrative Process Act

(VAPA), Code §§ 9-6.14:1 through 9-6.14:25.   On appeal, he
contends the circuit court (1) erred in holding that timely

payment of the statutory writ tax and clerk’s fees is

jurisdictional; (2) erred in holding that Rule 1:9 of the Rules

of the Supreme Court does not apply to actions filed pursuant to

Part Two A of the Rules; and (3) abused its discretion in

denying his request for leave to pay the writ tax and clerk’s

fees.    For the reasons that follow, we reverse the ruling of the

circuit court and remand for further proceedings.

                                  I.

                                 FACTS

        Harold A. Logan, a licensed land surveyor, filed a

complaint with the Commonwealth’s Department of Professional and

Occupational Regulation (the Department), alleging that

appellant violated various sections of the Virginia Code by

altering subdivision plans prepared by Logan.    Appellant, the

Fairfax County Surveyor, took the position that his alteration

of Logan’s plans occurred in the course of his duties as the

County Surveyor and did not violate the Code.    Following an

investigation and informal fact-finding conference pursuant to

the VAPA, Code § 9-6.14:11, the Board concluded that appellant

“utilized the work of another professional without the

professional’s consent” and issued an order to that effect on

January 5, 1998.    Although appellant was represented in those

proceedings by the County Attorney’s office, the Board’s order

was against appellant alone.

                                 - 2 -
     Appellant timely filed his notice of appeal on February 5,

1998, and timely filed his petition for appeal on March 9, 1998.

The petition listed appellant as “BURTON O. SOURS, JR., Fairfax

County Surveyor,” and was signed by the County Attorney.    The

clerk’s office charged no filing fee.   The petition for appeal

was served on Logan on April 3, 1998, and on the Board on

April 6, 1998.

     The Board moved to dismiss the petition on the ground that

the petition for appeal was not timely filed because appellant

did not pay the statutory writ tax and clerk’s fees.   It posited

that the clerk filing the petition did not collect the tax and

fees because the County Attorney was representing appellant.

The Board contended, however, that the proceedings were against

appellant in his individual capacity as a licensed surveyor and

were independent of his employment with the county and that, as

a consequence, the tax and fees were due.

     Appellant argued that the actions for which he was

sanctioned were performed in the course of his duties as the

County Surveyor and that the clerk acted properly in not

requiring him to pay the writ tax and clerk’s fees.

Alternatively, he argued that Rules 2:2 and 2A:4 do not require

that the tax and fees be paid within the thirty-day appeal

period and that Rule 1:9 gave the circuit court discretion to

permit payment of the tax and fees beyond the thirty-day period.



                              - 3 -
     The circuit court rejected appellant’s argument that he was

not required to pay the writ tax and clerk’s fees and held that

their timely payment was a necessary condition to the perfection

of his appeal.   Appellant moved the court to exercise its

discretion under Rule 1:9 to permit payment of the tax and fees

at that time.    In a hearing on the motion, the circuit court

said that “if 1:9 controls, I would readily grant this motion.”

It ultimately denied the motion on the ground that “[i]t is

mandatory to file the fee.”

     Appellant noted his appeal to this Court.    He has not

appealed the circuit court’s ruling that he was statutorily

required to pay the writ tax and clerk’s fees.

                                 II.

                              ANALYSIS

     Part Two A of the Rules of the Supreme Court governs the

appeal from a case decision of an agency pursuant to the VAPA.

Rule 2A:4 provides, in relevant part, as follows:

          (a) Within 30 days after the filing of the
          notice of appeal, the appellant shall file
          his petition for appeal with the clerk of
          the circuit court named in the first notice
          of appeal to be filed. Such filing shall
          include all steps provided in Rules 2:2 and
          2:3 to cause a copy of the petition to be
          served (as in the case of a bill of
          complaint in equity) on the agency secretary
          and on every other party.

The thirty-day period in which to file a petition for appeal of

an agency case decision is mandatory, as indicated by the


                                - 4 -
General Assembly’s use of the word, “‘shall.’”       Mayo v.

Department of Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761

(1987).    “‘The purpose of the specific time limit is not to

penalize the appellant but to protect the appellee.      If the

required papers are not [timely] filed, the appellee is entitled

to assume that the litigation is ended, and to act on that

assumption.’”    Id. (quoting Avery v. County Sch. Bd., 192 Va.

329, 333, 64 S.E.2d 767, 770 (1951)).      Furthermore, “[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.”       Id. at 524, 358 S.E.2d at

762.   For these reasons, the timely filing of a petition for

appeal of an agency decision is jurisdictional.

       We have never expressly considered whether payment of the

writ tax and clerk’s fees within the thirty-day period for

filing the petition also is jurisdictional.      A careful

examination of the Rules and relevant statutes leads us to

conclude that it is not.

       Rule 2A:4(a) provides that the filing of a petition for

appeal “shall include all steps provided in Rules 2:2 and 2:3 to

cause a copy of the petition to be served” on the necessary

parties.   Rule 2:2 provides that “[t]he statutory writ tax and

clerk’s fees shall be paid before the subpoena in chancery is

                                - 5 -
issued.”   Code §§ 58.1-1727 to 58.1-1729 contain more general

provisions governing the payment of writ taxes.   Such taxes are

imposed, inter alia, “upon (i) the commencement of every action,

in law or chancery, in a court of record, whether commenced by

petition or notice, ejectment or attachment.”   Code § 58.1-1727.

Like Rule 2:2, Code § 58.1-1729 provides that “[n]o clerk shall

issue a writ, or docket any removed or appealed warrant, or any

notice mentioned in this article until the tax imposed under

this article has been paid,” but it also provides that “[the

clerk’s] failure to collect the tax shall not invalidate the

proceeding.”   Therefore, the Rules and related statutes

contemplate that the clerk will not direct service of the

petition until the writ tax and clerk’s fees have been paid, but

Code § 58.1-1729 provides expressly that the clerk’s failure to

collect the writ tax is not fatal to the proceeding.   See Davis

v. McCall, 133 Va. 487, 492, 113 S.E. 835, 837 (1922) (holding

that the fact plaintiff did not pay writ tax before clerk issued

writ “was a matter between the clerk and the commonwealth, and

. . . [that payment] was not such a necessary condition

precedent to the issuing of the writ as to entitle the defendant

to set it up in bar of the action”).   Nothing in the statutes or

rules contravenes the application of this approach in VAPA

appeals.   See Rule 2A:5 (providing that “[f]urther proceedings

[in VAPA appeals] shall be held as in a suit in equity and



                               - 6 -
[that] the rules contained in Part Two, where not in conflict

with the Code [or Part Two A of the Rules], shall apply . . .”).

       Here, the clerk effected service of the petition without

requiring payment of the writ tax and fees.      Viewing Rules 2A:4

and 2:2 and Code § 58.1-1729 in light of our holding in Mayo, we

conclude that payment of the writ tax and clerk’s fees is not

jurisdictional as long as the petition is otherwise served in

compliance with the rules. 1     As we indicated in Mayo, the purpose

of the filing requirement in Rule 2A:4 is to keep the prevailing

party apprised of the status of the case and allow him to assume

the matter has ended if the non-prevailing party does not timely

request appellate relief.       See 4 Va. App. at 523, 358 S.E.2d at

761.       Here, appellant’s non-payment of the writ tax and clerk’s

fees did not deprive appellee of notice of the appeal.

Therefore, we hold that payment of the writ tax and clerk’s fees

within the thirty-day period for filing the petition for appeal




       1
       Although service here occurred within thirty days of
filing of the notice of appeal, the rules do not mandate that
service be effected within that time frame. See Rule 2A:4.
Rule 2A:4 requires only that the appellant shall complete all
acts required of him within that thirty-day period. Under Rule
2:4, “[n]o decree shall be entered against a defendant who was
served with process more than one year after institution of the
suit against him unless the court finds as a fact that the
plaintiff exercised due diligence to have timely service on
him.” See Rule 2A:5; see also Rule 3:3 (providing same one-year
limit for service of motions for judgment filed in actions at
law).


                                   - 7 -
is not mandatory and not jurisdictional.   Accordingly, we

conclude that the circuit court erroneously granted appellee’s

motion to dismiss.

     Further, we hold that the trial court had the discretion

under Rule 1:9 to permit appellant to pay the writ tax and

clerk’s fees after service of the petition for appeal, even

though Rule 2A:4 contemplates payment of the tax and fees before

service.   Rule 2A:5 provides that following the filing of a

petition for appeal under the VAPA,

           [f]urther proceedings shall be held as in a
           suit in equity and the rules contained in
           Part Two, where not in conflict with the
           Code of Virginia or this part [Part Two A],
           shall apply, but no matter shall be referred
           to a commissioner in chancery. The
           provisions of Part Four shall not apply and,
           unless ordered by the court, depositions
           shall not be taken.

Therefore, pursuant to Rule 2A:5, the circuit court, in

overseeing an administrative appeal, retains all authority

it would have in a suit in equity other than as expressly

excluded in that rule or relevant statutes.   Manifestly, suits

in equity are governed by those rules in Part One, which

contains “GENERAL RULES APPLICABLE TO ALL PROCEEDINGS.”

Therefore, in VAPA appeals, the circuit court may rely on all

rules in Part One which would be applicable to suits in equity

under Part Two to the extent they do not conflict with the VAPA

or Part Two A of the Rules.



                               - 8 -
     Rule 1:9, entitled “Discretion of Court,” provides as

follows:

                All steps and procedures in the clerk’s
           office touching the filing of pleadings and
           the maturing of suits or actions may be
           reviewed and corrected by the court.

                The time allowed for filing pleadings
           may be extended by the court in its
           discretion and such extension may be granted
           although the time fixed already has expired;
           but the time fixed for the filing of a
           motion challenging the venue shall in no
           case be extended except to the extent
           permitted by § 8.01−264.

As discussed above, Rule 2A:4 requires that the petition for

appeal be filed and that the filing include all steps required

to cause the petition to be served on the necessary parties.

Therefore, Rule 1:9’s second paragraph, permitting the court to

extend the time for filing pleadings, does not apply to the

filing of a petition for appeal under the VAPA.   Cf. Mayo, 4 Va.

App. at 523-24, 358 S.E.2d at 761-62 (without expressly

considering applicability of Rule 1:9, holding that thirty-day

time limit of Rule 2A:4 for filing of petition for appeal is

jurisdictional and may not be extended).   However, because we

previously have held that payment of the writ tax and clerk’s

fees is not jurisdictional, the circuit court may apply Rule

1:9’s paragraph 1 to correct the clerk’s error in not collecting

the writ tax and clerk’s fees upon the filing of appellant’s

petition for appeal and prior to service of the petition.



                               - 9 -
     Here, the circuit court stated expressly that it would have

granted the motion if Rule 1:9 applied, but it erroneously

believed that Rule 1:9 did not apply.   Therefore, we reverse and

remand to the circuit court for payment of the writ tax and

clerk’s fees and further proceedings consistent with this

opinion.

                                            Reversed and remanded.




                             - 10 -
Bumgardner, J., concurring.

     I concur in the result, but I do not join in the majority

opinion which I believe speaks more broadly than necessary.

     The appellant timely filed his petition for appeal, but the

clerk of court assessed no fee, so none was paid.   Process

issued and was served timely and properly.   The failure of the

clerk to assess the correct writ tax should not invalidate the

proceeding.   See Code § 58.1-1729.




                              - 11 -
