A personal injury plaintiff avoided disaster this month when a Montgomery County judge ruled that his last-minute lawsuit was not too late, even though the check to cover the filing and process fees was a dollar short. The deadline passed before the extra dollar was paid.
The case explored aspects of Virginia law raised by a 2015 Virginia Supreme Court ruling upholding dismissal of an action because the last fee payment was not received until after the filing deadline.
The result was better for the accident victim in the case of Fleming v. Wade in Montgomery County Circuit Court. On July 6, Judge Robert M.D. Turk denied the defendant’s special plea of the statute of limitations, allowing Fleming’s auto accident case to go forward.
One check for two fees
The accident occurred on Christmas Day of 2014. Fleming’s $200,000 lawsuit against an out-of-state driver was received by the clerk on Nov. 21, 2016.
Grundy lawyer Thomas R. Scott had mailed the papers with a check for $320, intended to cover a filing fee of $296 and a process fee of $24. A separate check covered a sheriff’s fee for service.
Scott had miscalculated. The filing fee should have been $297.
Notified of the deficiency, Scott’s office paid the difference by credit card on Jan. 26 of this year.
Wells, the defendant driver, filed a special plea of the statute of limitations contending that, since the check for filing and process fees was insufficient, the suit could not be considered “filed” until the extra buck was tendered. The action was time-barred, argued Wells’ attorney, Johneal M. White of Roanoke.
The two sides debated the application of the Virginia Supreme Court’s 2015 ruling in Landini v. Bil-Jax Inc. (VLW 015-6-011), an unpublished order suggesting that a suit is not considered filed until the last required fee is paid.
In Landini, a suit was sent with a check that was two dollars short. The clerk’s staff set it aside and did not notify the plaintiff’s lawyer of the deficiency until the deadline was almost past. The added fee was not paid in time.
The Supreme Court affirmed dismissal of the suit in an order that focused on the nature of required “library fees.” The justices did not address court rules regarding the filing of lawsuits.
A committee of the Boyd-Graves Conference termed the result an “injustice” and urged legislation which would have deemed the suit timely filed. The General Assembly has not taken up the cause, however.
Various issues raised
Scott took a multi-pronged approach in his bid to keep the Fleming action alive. He sought to distinguish the Landini decision, he cited other Virginia cases to the effect that filing does not depend on fee payment and he said his fee was adequate because one of the included charges was not mandated for timely payment.
Scott claimed that the Landini plaintiff failed to argue that a fee is not a prerequisite for filing, so the “nonbinding” order had little effect.
He pointed to a 2002 circuit court decision – Layfield v. Indian Acres Club of Thornberg (VLW 002-8-071) – to contend that a suit is filed when presented, regardless of the fee. He said that case was not considered by the Landini court.
He argued that the clerk had the implicit authority to apply the proper amount from his check to cover the filing fee and to consider only the process fee as underpaid.
Finally, Scott pointed to the “Technology Trust Fund Fee,” part of the various court charges that make up the overall filing fee. He said the code directs a clerk to “assess” – not “collect” – that particular charge, excluding it from the list of mandatory payments for filing.
White, for the defendant, argued that Landini closed the door on all such arguments. She cited a 2010 circuit court opinion – Lahey v. Johnson (VLW 012-6-014) – referring to Layfield as “troublesome” and reaching an opposite conclusion.
White also contended that Scott’s apportionment-of-payment argument would put a clerk at odds with the statutes.
“Simply put, for the Clerk to do what the Plaintiff seeks and convert funds specifically dedicated by a party for a certain purpose into a different purpose would be a crime and nothing gives the Clerk the discretion to do other than directed,” White wrote in a brief.
Ruling for the plaintiff, Turk did not tip his hand on which argument he found persuasive. In a short July 6 letter, the judge denied the defendant’s special plea of the statute of limitations.
“The Court has reviewed its notes, read the memorandums, and listened to oral arguments. Having taken all of those into consideration, the Court arrived at its opinion herein,” Turk wrote.
A Stafford County circuit judge allowed a case to remain in court despite a late-fee challenge a year ago.
A junkyard owner appealed an adverse land use ruling by the county Board of Zoning Appeals, according to the owner’s lawyer, H. Clark Leming of Garrisonville.
The county’s lawyers contended the case was untimely because the clerk had failed to charge a fee required for BZA appeals and the deadline had passed.
Leming responded that the clerk appropriately treated the case as a writ of certiorari, as it was labeled, which required no fee. Judge Charles S. Sharp overruled the county’s motion to dismiss and plea in bar in a June 13, 2016, order.
Even “had there been an error, I find it is correctable given the reasonable interpretation that was applied to these statutes and that a payment after the fact would preserve the jurisdiction of the Court,” the judge said, according to a hearing transcript.
The case is Newton v. Board of Supervisors of Stafford County, Va.