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$2 short … and out of court

Statute bars late-filed suit

oThe Supreme Court of Virginia has upheld dismissal of a $2.5 million personal injury lawsuit because the last two dollars in required fees was received four days after the filing deadline.

In a case of apparent first impression, the court’s unpublished order appears to hold that a suit is not considered filed until the last required fee is paid.

The case presented a set of facts that amounted to a lawyer’s “nightmare,” according to one of the attorneys involved.

The court’s Jan. 30 order came in the case of Landini v. Bil-Jax Inc. (VLW 015-6-011).

The failed lawsuit involved an injury suffered by a high school band official in Powhatan County. Neil Landini had fallen from a drum major’s podium, according to one of his attorneys.

Landini and the workers’ compensation insurance company for the school division hired Salem lawyer C. Kailani Memmer to file a products liability action for Landini’s injuries.

After Memmer determined the amount of damages to be demanded, a law office staffer contacted a nearby clerk’s office to learn the proper amount of filing fees, Memmer said. The staffer was told the amount was $344, so she sent that amount with the suit to be filed in Powhatan Circuit Court.

The library fee was $2 higher in Powhatan, so the check was short by that amount.

The package arrived six days before the limitations period was due to expire, but the clerk waited until the due date to call Memmer’s office, the Landini brief said. The clerk explained that Powhatan County had increased the library assessment from $2 to $4, so the total filing costs were $346.

The clerk did not explain that the suit had not yet been filed, according to Memmer and Landini’s appellate attorney, L. Steven Emmert of Virginia Beach.

Memmer then sent a $2 check by mail. The clerk stamped the suit as being filed four days after the due date.

The lawyer later voluntarily dismissed the suit and refiled the action.

The late filing was never noticed by Landini’s counsel until defendants filed pleas in bar in the second action.

“From the standpoint of lawyers, it’s a nightmare,” Emmert said. “You don’t expect something like that.”

When the second lawsuit was served on the defendants, they contended the suit should be dismissed because the initial action was not filed within the two-year limitations period for personal injury claims.

Powhatan County Circuit Judge Paul W. Cella agreed. He dismissed the case with prejudice.

Landini appealed, saying the payment of the $2 library assessment fee was not a prerequisite for the filing of a civil action.

The Supreme Court took only two-and-a-half pages to affirm the dismissal of Landini’s suit.

The court’s analysis focused on the statute that sets out the clerk’s fees for civil actions, Va. Code § 17.1-275. Landini argued the subsection that lists the clerk’s fees to be paid at the time of filing does not require payment of the library fee.

But a later subsection of the same statute incorporates the library fees into the required filing fees, the court concluded.

“Thus, because the library fee was not tendered in full until after the expiration of the limitations period, Landini’s suit was not timely filed,” the court said.

The court declined to discuss Landini’s other arguments, including those focused on the court’s rules for filing civil actions.

Rule 3.2 states that a civil action “shall be commenced by filing a complaint in the clerk’s office.” The rule goes on to say that, upon filing, “the action is then instituted and pending as to all parties defendant thereto. The statutory writ tax and clerk’s fees shall be paid before the summons is issued.”

Rule 3.3 says the clerk “shall receive and file all pleadings when tendered, without order of the court.”

Emmert said the court may have decided to resolve the case with a short, unpublished order because of the rare circumstances.

“The situation is not going to occur very often,” he said.

Indeed, Memmer said the Powhatan clerk’s office told Landini’s counsel their current practice is to file pleadings when received and then collect any fees that may be due.

The defendants were represented by Herbert V. Kelly of Newport News who did not respond to a request for comment.

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