PRESENT: All the Justices 

ALEXANDRIA REDEVELOPMENT 

AND HOUSING AUTHORITY OPINION BY 

 JUSTICE D. ARTHUR KELSEY 

v. Record No. 141085 June 4, 2015 

LORAIN WALKER 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

James C. Clark, Judge 

 In the circuit court, Lorain Walker filed a complaint 

alleging that she had been improperly discharged by the 

Alexandria Redevelopment and Housing Authority ("ARHA"). The 

circuit court denied her requests for reinstatement and money 

damages but held that she was entitled to have her claims 

arbitrated under ARHA's grievance procedure. ARHA appeals, 

arguing that the circuit court misapplied Code § 15.2-1507. 

We agree and reverse. 

 I. 

 Walker worked for ARHA for several years before being 

discharged on September 23, 2010, for "grossly" violating 

ARHA's "absenteeism and tardiness policies." Walker filed a 

grievance seeking further review of her discharge. ARHA's 

grievance policy included various stages of review that, when 

applicable and timely requested, culminated in a hearing by an 

independent arbitrator. 

After Walker's grievance passed the initial stages of 

review, ARHA informed her in February 2011 that a panel of 
 2 

potential arbitrators had been requested from the Federal 

Mediation and Conciliation Service ("FMCS"). ARHA explained 

to Walker that when the parties received the names on the 

panel, she must participate in alternating strikes until a 

single arbitrator was chosen. Under ARHA's grievance policy, 

this process must be accomplished "[w]ithin thirty days after 

receipt of the panel." 

After ARHA had submitted a request to FMCS for a panel of 

arbitrators, it followed up with Walker by emails to her on 

February 7 and 15, 2011. Without addressing the panel of 

potential arbitrators, Walker replied via her smartphone on 

February 15: "I am seeking counsel so I can go to court." 

(Emphasis added.) Within minutes of Walker's message, ARHA's 

counsel replied, asking her to clarify whether her reference 

to court meant that she was "no longer interested in 

arbitration of [her] discharge." Walker never replied to this 

question. 

Several weeks later, ARHA reminded Walker that the 

thirty-day period would expire on March 17, 2011. If she was 

still interested in submitting her grievance to arbitration, 

ARHA stated, Walker needed to participate in the arbitrator 

selection process, which ARHA offered to complete with her by 

telephone if she would provide her phone number and an 

acceptable time to speak. If Walker continued to be 
 3 

unresponsive, ARHA warned her that it would conclude that she 

was "no longer interested in pursuing arbitration." 

After the March 17, 2011 deadline passed without any 

response from Walker, ARHA informed her that "effective 

immediately ARHA will treat your request for arbitration as 

withdrawn." Nevertheless, the next day Walker sent a cryptic 

email from her smartphone stating simply that she was 

"interested in arbitration" and providing her phone number. 

She offered no explanation, however, for her failure to 

participate in the arbitrator selection process prior to the 

expiration of the grievance procedure's thirty-day deadline. 

Four days after the deadline to select an arbitrator, 

Walker wrote to ARHA objecting, for the first time, to the use 

of emails to communicate - although she had at various times 

used a smartphone to reply to emails ARHA had sent. In a 

separate letter of the same date, she stated that she had not 

received a copy of the roster of prospective arbitrators. In 

reply, ARHA notified her that her arbitration request had 

already been deemed withdrawn given her failure to respond by 

the thirty-day deadline, and ARHA further noted that she had 

never before raised this issue although she had numerous 

opportunities to do so. Walker made no response. 

Nearly a year later, Walker filed a complaint in circuit 

court in February 2012, claiming that ARHA, "through its 
 4 

counsel," had "unilaterally determined that the Complainant 

had withdrawn her request for arbitration" of her grievance. 

Code § 15.2-1507(A)(7)(b), however, required Walker to appeal 

"within 30 days of the compliance determination." Walker 

ultimately nonsuited that action. 

Walker re-filed suit against ARHA in February 2013 

repeating the same allegations previously asserted in the 

nonsuited complaint. In addition to requesting an award of 

$300,000 in money damages, she requested an injunction 

ordering ARHA to reinstate her to her prior position. Neither 

her initial nor amended complaints in this action specifically 

requested a judicial order compelling arbitration of her 

grievance. 

On ARHA's motion for summary judgment, the circuit court 

denied Walker's claim for money damages and her request for 

reinstatement. The court, however, ordered ARHA to arbitrate 

Walker's grievance, opining that it believed that the parties 

had a "miscommunication . . . as opposed to a compliance 

issue." "I may be wrong," the judge explained, "but I'm 

sticking with it." ARHA appeals, arguing that the court erred 

as a matter of law. 

 II. 

Before addressing the merits of this appeal, we must 

first answer Walker's contention that the appeal should be 
 5 

dismissed because ARHA's notice of appeal was not timely 

filed. 

Rule 5:9(a) requires a notice of appeal to this Court to 

be filed in the circuit court within thirty days after the 

entry of the final or otherwise appealable order. ARHA relied 

upon Federal Express to deliver the notice of appeal in this 

case. The courier placed the notice of appeal in the hands of 

a clerk in the land records department of the clerk's office 

of the circuit court on May 15, 2014, exactly thirty days 

after the entry of the order ARHA seeks to appeal. 

The clerk, however, did not stamp the notice of appeal as 

"filed" until the next day, May 16, 2014, thus indicating that 

ARHA's notice of appeal was untimely under Rule 5:9(a). When 

ARHA brought this to the attention of the circuit court and 

produced uncontroverted evidence of timely filing, the court 

entered an order directing the clerk to correct the docket to 

reflect that the notice of appeal was in fact filed on May 15, 

2014. Walker did not appeal the trial court's corrective 

order and instead filed a motion to dismiss ARHA's appeal. 

In her motion to dismiss, Walker argues that the circuit 

court's order correcting the filing date was erroneous as a 

matter of law because a written document is filed only when 

the clerk of court stamps it as filed. ARHA contends that we 

need not consider Walker's argument because she did not 
 6 

challenge the court's correction order by filing a crossappeal or by assigning cross-error in her brief in opposition. 

See Rule 5:18(c). 

On this subject, the governing principles are easy to 

repeat but sometimes difficult to apply. No cross-appeal is 

necessary when an appellee seeks to support a judgment on 

alternative legal grounds, including those expressly rejected 

by the trial court and those raised for the first time on 

appeal. See Perry v. Commonwealth, 280 Va. 572, 581, 701 

S.E.2d 431, 437 (2010) (citing Washington v. Confederated 

Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 

(1979), and United States v. American Ry. Express Co., 265 

U.S. 425, 435 (1924)); accord Jennings v. Stephens, 135 S. Ct. 

793, 798 (2015).1 Cross-appeals are necessary only when an 

appellee seeks to modify or otherwise change a favorable 

judgment "with a view either to enlarging his own rights 

thereunder or of lessening the rights of his adversary." 

Jennings, 135 S. Ct. at 798 (quoting American Ry. Express Co., 

265 U.S. at 435).2

 

1

 See also Reynolds v. American Nat'l Red Cross, 701 F.3d 

143, 155-56 (4th Cir. 2012). This conclusion follows from the 

axiom that a "prevailing party seeks to enforce not a [trial] 

court's reasoning, but the court's judgment." Jennings, 135 

S. Ct. at 799 (emphasis in original). 

2

 Cross-error in Virginia practice is treated exactly the 

same. The only difference between the two is that the 
 7 

Because we strive to decide cases on the "best and 

narrowest grounds available," McGhee v. Commonwealth, 280 Va. 

620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010) (quoting Air 

Courier Conference v. American Postal Workers Union, 498 U.S. 

517, 531 (1991) (Stevens, J., concurring)),3 we need not 

determine whether Walker's argument should have been asserted 

by way of a cross-appeal or an assignment of cross-error. 

Here, settled principles of law defeat Walker's argument on 

the merits. 

When not filed electronically, a pleading is filed when 

it is physically delivered to the clerk of court. Rule 3:3 

("The clerk shall receive and file all pleadings when 

tendered." (emphasis added)); Mears v. Mears, 206 Va. 444, 

446, 143 S.E.2d 889, 890 (1965) (holding that a paper "is 

'filed' when delivered to the clerk by the agent selected by 

counsel"); accord W. Hamilton Bryson, Virginia Civil Procedure 

§ 6:01, at 6-3 (4th ed. 2005).4

 

assignment of cross-error, unlike a freestanding cross-appeal, 

is jurisdictionally dependent on the initiating appeal. If 

the appellant's petition for appeal is denied, assignment of 

cross-error by the appellee will not be granted or considered 

further by the Court. See Rule 5:18(c)(4)(i). 

3

 See also Miles v. Commonwealth, 274 Va. 1, 2, 645 S.E.2d 

924, 925 (2007) (Kinser, J., concurring) (quoting with 

approval Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 

628 S.E.2d 74, 77 (2006) (en banc)). 

4

 Traditionally, the term "pleadings" included only "the 

written statements of the positions, i.e., the claims and the 
 8 

As one court succinctly put the point: 

The word "filed" . . . is, as applied to 

court proceedings, a word of art, having a 

long established and well understood 

meaning . . . . It requires of one 

filing . . . merely the depositing of the 

instrument with the custodian for the 

purpose of being filed. . . . [I]t 

charges him with no further duty, subjects 

him to no untoward consequences as a 

result of the failure of the custodian to 

do his duty, by placing the instrument on 

the file, or as in modern practice placing 

his file mark on the instrument. 

Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939).5

It is true that a circuit court clerk's "filed" stamp is 

usually conclusive evidence of the filing date, see Mears, 206 

Va. at 445, 143 S.E.2d at 890, but that does not render the 

timing of the filing incontrovertible. When a party contests 

 

defenses, of the parties to the litigation." Bryson, supra, § 

6:02[1], at 6-4. A notice of appeal technically would not fit 

within the scope of the traditional definition. See, e.g., 

Coleman v. Thompson, 501 U.S. 722, 742 (1991) (characterizing 

a notice of appeal as "a purely ministerial document" (citing 

Rule 5:9)); Mears, 206 Va. at 447, 143 S.E.2d at 891 

(referring to it as a "paper" to be filed with the court). 

Even so, "there are other definitions of what a pleading is 

for different purposes in Virginia law," Kent Sinclair & Leigh 

B. Middleditch, Jr., Virginia Civil Procedure § 11.6, at 873 

(6th ed. 2014), and the distinctions are immaterial for the 

purpose of determining when a notice of appeal has been filed. 

5

 Cf. Rules 5:5(c), 5A:3(d) (governing appellate filings). 

The policy objectives for these rules are "(1) to circumvent 

the inconvenience of having to personally appear in the 

Clerk's office to effect a filing, and (2) to protect a party 

from those delays which often occur in the regular dispatch of 

mail and naturally are outside a party's control." Reese v. 

Wampler Foods, Inc., 222 Va. 249, 252-53, 278 S.E.2d 870, 872 

(1981). 
 9 

the clerk's date of filing, the circuit court retains the 

authority under Code § 8.01-428(B) to take evidence and to 

make factual findings approving or disapproving the clerk's 

filing date. A litigant, after all, "should not be denied a 

review simply because of an error made by a ministerial 

officer of the court." Leigh v. Commonwealth, 192 Va. 583, 

587, 66 S.E.2d 586, 589 (1951).6

That is just what happened here. ARHA brought the 

discrepancy to the attention of the circuit court and 

irrefutably established the date of physical delivery and, 

thus, the true date of filing. The circuit court prudently 

issued a correction order so that the record would "speak the 

truth." Jefferson v. Commonwealth, 269 Va. 136, 140, 607 

S.E.2d 107, 110 (2005); see also Council v. Commonwealth, 198 

Va. 288, 292-93, 94 S.E.2d 245, 248 (1956) (clarifying that 

"the purpose of a nunc pro tunc entry is to correct mistakes 

of the clerk . . . so as to make the record show what actually 

took place").7

 Because the correction order merely confirms 

 

6

 See also Avery v. County Sch. Bd., 192 Va. 329, 331, 64 

S.E.2d 767, 769 (1951) (recognizing that "[t]his court has 

always exercised its discretion, so far as it legally could, 

to protect litigants against the consequences of the failure 

of a public officer to perform ministerial duties"); Brame v. 

Guarantee Fin. Co., 139 Va. 394, 398, 124 S.E. 477, 478 

(1924). 

7

 See also Rule 1:9 ("All steps and procedures in the 

clerk's office touching the filing of pleadings and the 
 10 

the factual timeliness of ARHA's notice of appeal, we deny 

Walker's motion to dismiss.8

 III. 

 A. The ARHA Grievance Procedure 

Under Virginia law, a local redevelopment and housing 

authority has the option to include its employees in the 

locality's grievance procedure9

 or to adopt its own procedure 

specifically applicable to the authority's employees. See

Code § 15.2-1507(A)(4). ARHA elected to adopt its own 

procedure. 

 The ARHA grievance procedure takes a grievant through 

various, informal stages of dispute resolution. Step 1 

involves a written response by ARHA to the assertions in the 

grievance. If dissatisfied with this response, the grievant 

may challenge it in Step 2, which includes a review by the 

department director. Step 3 involves a written appeal to 

 

maturing of suits or actions may be reviewed and corrected by 

the court."); cf. Martin P. Burks, Common Law & Statutory 

Pleading & Practice § 50, at 108 (T. Munford Boyd, ed., 4th 

ed. 1952) (noting that a clerical "mistake" of the clerk 

"cannot prejudice" the litigants). 

8

 This appeal does not require us to address whether, and 

to what extent, the failure to tender certain fees renders a 

physically delivered pleading incapable of being filed. See 

generally Landini v. Bil-Jax, Inc., Record No. 140591 (Jan. 

30, 2015) (unpublished). 

9

 Under Code § 15.2-1507(A), a locality may adopt its own 

employee grievance procedure consistent with Code § 15.2-1506 

or be deemed to have adopted the grievance procedure 

applicable to state employees, Code § 2.2-3000 et seq. 
 11 

ARHA's chief executive officer. The final stage initiates a 

formal arbitration hearing in which the arbitrator has 

authority to enter a binding determination. 

 Both parties have compliance duties during the final 

stage. The arbitration procedure details the process of 

selecting an arbitrator, scheduling a hearing, conducting an 

evidentiary hearing, and obtaining a ruling from the 

arbitrator. The first compliance duty is selecting an 

arbitrator. The grievance procedure specifies that both 

parties shall pick an arbitrator by striking names from a 

panel of potential arbitrators provided by the independent 

arbitration service. This task must be completed "[w]ithin 

thirty days" of receiving the panel. After the process of 

striking the names from the panel leaves one arbitrator 

remaining, the arbitration may be scheduled. 

 B. Judicial Review of Compliance Determinations 

 Judicial review of the grievance procedure is sharply 

limited by Code § 15.2-1507. With respect to procedural 

noncompliance, the statute provides: 

After the initial filing of a written 

grievance, failure of either party to 

comply with all substantial procedural 

requirements of the grievance procedure, 

including the panel or administrative 

hearing, without just cause shall result 

in a decision in favor of the other party

on any grievable issue, provided the party 
 12 

not in compliance fails to correct the 

noncompliance within five workdays of 

receipt of written notification by the 

other party of the compliance violation. 

Code § 15.2-1507(A)(7)(a) (emphasis added). The chief 

administrative officer or his designee "shall determine 

compliance issues." Code § 15.2-1507(A)(7)(b). If the 

grievant objects to the compliance determination, she may seek 

judicial review "by filing [a] petition with the circuit court 

within 30 days of the compliance determination." Id. 

 C. The Circuit Court's Holding 

 In this case, Walker did not request an order of 

arbitration in either her complaint or amended complaint. 

Instead, she sought money damages and an injunction 

reinstating her to her former position. Though this alone 

would ordinarily be enough to put in question the circuit 

court's arbitration order,10 ARHA limits its appellate 

challenge of the arbitration order to the circuit court's 

 

10 "'Pleadings are as essential as proof, and no relief 

should be granted that does not substantially accord with the 

case as made in the pleading.'" Ted Lansing Supply Co. v. 

Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141, 277 S.E.2d 

228, 229-30 (1981) (quoting Bank of Giles Cnty. v. Mason, 199 

Va. 176, 180, 98 S.E.2d 905, 907 (1957)). Therefore, "'[n]o 

court can base its decree upon facts not alleged, nor render 

its judgment upon a right, however meritorious, which has not 

been pleaded and claimed.'" Id. at 1141, 277 S.E.2d at 230 

(quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 

181 S.E. 521, 525 (1935)). 
 13 

failure to apply the thirty-day appeal deadline imposed by 

Code § 15.2-1507(A)(7)(b). 

 Both parties agree that, in March 2011, ARHA declared 

Walker to be noncompliant with the grievance procedure and 

deemed her request for arbitration to be withdrawn. See, 

e.g., Appellee's Br. at 6; Oral Argument Audio at 2:35 to 

3:00. Walker specifically alleged that ARHA, "through its 

counsel," made the compliance determination.11 Walker, 

however, waited nearly a year to file her first complaint 

seeking judicial review - far beyond the thirty-day deadline 

imposed by Code § 15.2-1507(A)(7)(b). 

 The circuit court decided not to apply the thirty-day 

deadline on the ground that this case involved a mere 

"miscommunication between the parties as opposed to a 

compliance issue." We do not understand the distinction. 

Walker claimed that she was confused about the arbitrator 

selection process and that her confusion resulted in her 

alleged noncompliance. She did not assert, nor could she, 

given her pleading, that ARHA did not declare her noncompliant 

and deem her arbitration request to be withdrawn. It was just 

 11 At oral argument on appeal, Walker's counsel conceded 

that ARHA's counsel acted as the designee of ARHA's chief 

executive officer for purposes of making this determination. 

See Oral Argument Audio at 20:25 to 20:57. 
 14 

this determination that Walker attacked in her amended 

complaint. 

 The circuit court's reasoning conflated the cause of 

Walker's noncompliance (an alleged miscommunication) with its 

effect (a determination triggering the thirty-day window to 

petition the circuit court for review). The two are 

conceptually separate. The statutory deadline could not be 

set aside on the ground that the circuit court believed that 

Walker had a valid excuse for being noncompliant. If that 

were enough, the deadline would be pointless - for it would 

only impose a procedural bar on challenges destined to fail on 

the merits anyway. See generally Winslow v. Commonwealth, 62 

Va. App. 539, 546, 749 S.E.2d 563, 567 (2013) ("It is never 

enough for the defendant to merely assert a winning argument 

on the merits - for if that were enough procedural default 

'would never apply, except when it does not matter.'" 

(citation omitted)).12

 12 Finally, we note that Walker did not file in the 

circuit court an "application" seeking to enforce a 

contractual arbitration right under the Virginia Uniform 

Arbitration Act, specifically, Code § 8.01-581.02(A). Nor did 

the circuit court issue an interlocutory order compelling 

arbitration under that statute or "stay" the proceeding under 

Code § 8.01-581.02(D) for purposes of retaining jurisdiction 

under Code §§ 8.01-581.010 and 8.01-581.011. Instead, the 

circuit court issued a "FINAL ORDER GRANTING IN PART AND 

DENYING IN PART MOTION FOR SUMMARY JUDGMENT," stating that 

"the proceedings in this matter are otherwise terminated and 

this order is Final." Neither Walker nor ARHA questions our 
 15 

 IV. 

 We deny Walker's motion to dismiss, finding no error in 

the circuit court's order correcting the filing date of ARHA's 

notice of appeal. We hold that the circuit court erred, 

however, in ordering ARHA to arbitrate Walker's grievance. We 

thus reverse and enter final judgment in favor of ARHA. 

Reversed and final judgment. 

 

appellate jurisdiction over the final order entered in this 

case. Nor do we. A circuit court order cannot create its own 

immunity to appeal by granting relief not requested in the 

pleadings and by entering a final order compelling arbitration 

outside the scope of the Virginia Uniform Arbitration Act. 

Cf. Seguin v. Northrop Grumman Sys. Corp., 277 Va. 244, 672 

S.E.2d 877 (2009) (holding that an interlocutory decree 

ordering arbitration pursuant to the Virginia Uniform 

Arbitration Act is not an appealable final order under Code § 

8.01-670(A)(3) and not an appealable interlocutory order under 

Code § 8.01-581.016).