Muse Constr. Grp., Inc. v. Va. Bd. for Contractors

61 Va.App. 125

733 S.E.2d 690

MUSE CONSTRUCTION GROUP, INC.

v.COMMONWEALTH of Virginia BOARD FOR CONTRACTORS and Warren and Beverly Wharton.

Record No. 1134–11–2.

Court of Appeals of Virginia, Richmond.

Nov. 13, 2012.

George H. Dygert (Dygert, Wright, Hobbs & Heilberg, PLC, on brief), Charlottesville, for appellant.

Steven P. Jack, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee Commonwealth of Virginia Board for Contractors.

No brief or argument for appellees Warren and Beverly Wharton.

Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, McCULLOUGH, HUFF and CHAFIN, JJ.

PETTY, Judge.

Muse Construction Group, Inc. (“Muse”) appeals from an order of the trial court dismissing Muse's appeal from a case decision by the Board for Contractors (“Board”) that revoked Muse's contractor's license. Muse argues that the trial court erred in concluding that Rule 2A:4(a) requires service of process upon an agency secretary in the same manner as is required for service of a complaint initiating a civil action. A divided panel of this Court held that Rule 2A:4(a) did not require formal service of process in Muse's case and accordingly reversed the trial court's decision. Muse Constr. Group, Inc. v. Commonwealth Bd. for Contractors, 60 Va.App. 92, 724 S.E.2d 216 (2012). We subsequently granted the Commonwealth's petition for rehearing en banc and stayed the panel decision.¹ On rehearing en banc, we hold that Rule 2A:4(a) contemplates formal service of process as with a complaint initiating a civil action. Therefore, we affirm the judgment of the trial court.

I. BACKGROUND

The only facts relevant to this appeal are the procedural facts of the case, which the parties agree are not in dispute. The Board entered a final opinion and order on September 21, 2010, revoking Muse's license and imposing various monetary penalties. Muse filed its notice of appeal on October 22, 2010, and mailed copies of the notice to the other parties by certified mail. On November 10, 2010, Muse filed its petition for appeal with the clerk of the trial court, and on the same day mailed copies of its petition to the other parties by certified mail.²

On February 7, 2011, the Board filed a plea in bar claiming lack of jurisdiction for Muse's failure to perfect service upon the Board's secretary as required by Rule 2A:4. The next day, Muse requested the clerk of the trial court to serve its petition on the parties, and Muse paid the clerk for such service at that time. The Board's secretary was served with Muse's petition for appeal on February 25, 2011.

On March 3, 2011, the Board moved to dismiss Muse's petition for appeal. The Board argued that Muse had failed to take all the necessary steps to cause a copy of its petition to be served on the agency secretary as required by Rule 2A:4(a). In reply, Muse argued that the Rules do not require the petition for appeal to be served in the same manner as initial process is served in a civil action. Muse characterized its appeal from the agency's decision as “an ongoing action” and argued that service of its petition for appeal need be no different from service of a petition for appeal of a circuit court decision to this Court or the Supreme Court.³

The trial court entered a final order dismissing Muse's appeal on May 31, 2011. In its order, the trial court found that Muse failed to timely “take the steps required by Rules 3:2, 3:3 and 3:4 of the Rules of the Supreme Court of Virginia for filing and service of a complaint to commence a civil action to have the petition for appeal served with process upon the agency secretary ... as required by Rule 2A:4(a).” Muse then appealed to this Court.

II. ANALYSIS

The question presented to us in this appeal is whether Rule 2A:4(a) requires service of process in the same manner in which process is served to initiate a civil action. We hold that it does.

The interpretation of Rule 2A:4(a) and other relevant statutory language is a question of law that we review de novo. See Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (noting that issues of statutory interpretation are pure questions of law subject to de novo review). In construing the language of rules and statutes, “we must give effect to the [drafters'] intention[s] as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity.” Id. Indeed, “ ‘[t]he primary objective of statutory construction is to ascertain and give effect to legislative intent.’ ” Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)). Moreover, “ ‘[i]t is a cardinal rule of construction that statutes dealing with a specific subject must be construed together in order to arrive at the object sought to be accomplished.’ ” Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462 (2007) (quoting Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 8 (1957)). These principles apply equally to construing the language of the Rules of the Supreme Court as they do to construing statutory language.

A. The Meaning of Rule 2A:4(a)

Code § 2.2–4026, part of the Virginia Administrative Process Act (“VAPA”), provides that the judicial branch of government may review certain actions taken by administrative agencies “in the manner provided by the rules of the Supreme Court of Virginia.” Part Two–A of the Rules of the Supreme Court of Virginia sets forth the Rules governing the courts' review of such actions, pursuant to Code § 2.2–4026. See Rule 2A:1(a).

Rule 2A:4 prescribes the requirements for a petition for appeal from an agency regulation or case decision. Rule 2A:4(a) states, in relevant part:

Within 30 days after the filing of the notice of appeal, the appellant shall file a petition for appeal with the clerk of the circuit court named in the first notice of appeal to be filed. Such filing shall include within such 30–day period both the payment of all fees and the taking of all steps provided in Rule 3:2, 3:3 and 3:4 to cause a copy of the petition for appeal to be served (as in a civil action) on the agency secretary and on every other party.

(Emphasis added.)

The plain language of the Rule requires the party complaining of an agency action to take all steps provided in Rules 3:2, [61 Va.App. 132]3:3, and 3:4 to cause a copy of the petition for appeal to be served in the same manner as service is accomplished in a civil action. That this is referring to formal service of process that initiates a civil action, and not to some other type of service in an already-instituted civil action, is apparent from both (1) the language of the statutory scheme in the VAPA that authorizes judicial review of agency actions in the first place, and (2) the language of numerous other Rules, including those expressly referred to in Rule 2A:4(a), as well as others.

The authority of a court of this Commonwealth to review an action taken by an administrative agency arises from Code § 2.2–4026, which states:

Any person affected by and claiming the unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness of a case decision and whether exempted from the procedural requirements of Article 2 (§ 2.2–4006 et seq.) or 3 (§ 2.2–4018 et seq.) of this chapter, shall have a right to the direct review thereof by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the rules of the Supreme Court of Virginia. Actions may be instituted in any court of competent jurisdiction as provided in § 2.2–4003, and the judgments of the courts of original jurisdiction shall be subject to appeal to or review by higher courts as in other cases unless otherwise provided by law. In addition, when any regulation or case decision is the subject of an enforcement action in court, it shall also be reviewable by the court as a defense to the action, and the judgment or decree therein shall be appealable as in other cases.

(Emphasis added.)

The plain language of this statute indicates that a party seeking to challenge an agency's regulation or case decision has a right to “the direct review thereof” by “instituting” a “court action” in a court that has “original jurisdiction” to hear such an action. This language clearly treats a challenge to an agency regulation or case decision as a brand new judicial proceeding, separate from whatever administrative proceeding may have preceded it. Properly speaking, such a judicial action is not an appeal from a lower judicial tribunal; rather, the legislature carefully refers to such an action as a “direct review” of an administrative agency's conduct.⁴ Furthermore, such an action must be “instituted” in a court, not simply appealed to or transferred to a court. The court in which such an action is instituted is the court of “original jurisdiction,” which implies that no judicial tribunal has previously exercised jurisdiction over the parties and their proceeding.⁵

Other statutory language in the VAPA demonstrates the consistency and purposefulness of the legislature's choice of terminology to describe a judicial review action regarding agency conduct. Code § 2.2–4027 states that “the party complaining of agency action” bears the burden to show an error of law that is “subject to review by the court.” It also refers to the “judicial review” of “final agency action” and to “the review action” in the court. Code § 2.2–4027. Likewise, Code § 2.2–4028 speaks of the time when “judicial review is instituted” and authorizes the court to stay certain effects of agency conduct “pending conclusion of the review proceedings.” Code § 2.2–4029 refers to “the review action.” Importantly, Code § 2.2–4030 speaks of “any civil case brought under Article 5 (§ 2.2–4025 et seq.) of this chapter ... in which any person contests any...