COURT OF APPEALS OF VIRGINIA

Present: Judges Fran k, McClanahan and Petty Argued at Salem, Virginia

ROBERT EDWARD WOODY OPINION BY v. Record No. 2716-07-3 JUDGE WILLIAM G. PETTY DECEMBER 30, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF AMHERST COUNTY J. Michael Gamble, Judge Joseph A. Sanzone (Sanzone & Ba ker, on briefs), for appellant. Josephine F. Whalen, Assistant Attorn ey General (Robert F. McDonnell, Attorney General, on briefs), for appellee.

Following a bench trial, Robert Edward Woody was convicted of driving while

intoxicated in violation of Amhe rst County Code § 9.1 and refusal to submit to a breath or blood test in violation of Code § 18.2-268.3. W oody argues on appeal that the evidence was insufficient to convict him of driving while int oxicated. For the following reasons, we hold that we do not have jurisdiction to hear this appeal; therefore, we dismiss the appeal.

I. B ACKGROUND Investigator Jason Staton of the Amherst County Sheriff’s Depart ment observed Woody drive out of a parking lot and cross four lanes of traffic. Staton wa s forced to apply his brakes in

order to avoid contact. Inve stigator Staton initia ted his emergency lights and pulled Woody over into another parking lot. After approaching the vehicle and speaking to Woody, Staton could smell a strong odor of alcohol and a strong odor of burning marijuana within the vehicle. Staton also noticed Woody’s “red glossy [sic] eyes.”- 2 - Woody admitted to drinking one beer an hour before this traffic stop occurred. Staton directed Woody to perform several field sobriety tests. After observing Woody’s performance, Staton arrested him for driving under the influence and advised him of his Miranda warnings and the Virginia implied consent law. Staton told W oody that he would have to take a blood test, and Woody refused. Staton issued Woody a summons charging him w ith refusing to take a blood test “in violation of Section 18.2-268.3, Code of Virginia.” A magistrate issued a warrant on the driving while intoxicated charge. The warrant recited that Woody was charged with a “Misdemeanor (Local)” and that Amherst County was the prosecu ting entity. The warrant further alleged that Woody “did unlawfully in violation of Section 18.2-266/9.1, Code of Ordinances of this city, county or town” drive while intoxicated. 1

1 Code § 9.1 of the Amherst County Code states, in pertinent part: Pursuant to the authority of Code of Virginia, § 46.2-1313 and Code of Virginia, § 1-13.39:2, all of the appropriate provisions and requirements of the laws of the state contained in VA. Code Ann. Title 46.2, in Article 9 of Chapter 11 of Title 16.1 of the Code of Virginia (Code of Virginia, § 16.1-27 8 et seq.), and in Article 2 of Chapter 7 of Title 18.2 of Code of Virginia (Code of Virginia, § 18.2-266 et seq.), as in effect on July 1, 2006, and as amended thereafter, except those provision s and requirements the violation of which constitutes a felony, and except those provisions and requirements which by their very nature can have no application to or within the county, are hereby a dopted and incorpor ated in this chapter by reference and made app licable within the county. Such incorporation by reference is specifically intended to include future amendments to the state statutes cited above.

* * * * * * * It shall be unlawful for any pers on within the county to violate or fail, neglect or refuse to comply with any provision of said Code of Virginia which is adopted by this section; provided, that in no event shall the penalty imposed fo r the violation of any provision or requirement hereby adopted ex ceed the penalty imposed for a similar offense under said Title 46.2, Article 9 of Chapter 11 of- 3 - Woody was tried and convicted of both counts in the General District Court of Amherst County. Woody appealed his convictions to the Circuit Court of Amherst County and, on October 22, 2007, he was again convicted of bot h charges. On November 9, 2007, Woody filed a notice of appeal styled “Com monwealth of Virginia v. Robert Edward Woody” in the circuit court clerk’s office. The notice of appeal named the Commonwealth of Virginia as the appellee. Woody then petitioned this Court to gr ant his appeal of both convictions. We granted Woody’s petition on the first que stion regarding the sufficiency of the evidence on the driving under the influence charge ; however, we did not grant the petition on the second question presented concerning the refusa l conviction because we lack jurisdiction. 2

Because of inconsistencies in the trial court’s fi nal order we directed th e trial court to clarify whether Woody was convicted under Amherst Count y Code § 9.1 or Virginia Code § 18.2-266. By order dated October 30, 2008, the trial court clar ified that “the defendant was convicted of driving while intoxicated, 1 st [sic] offense, in violation of §9.1 of the Amherst County Code.”

The trial court then entered a corrected convi ction order clearly indicating that Woody was

convicted of a violation of the County ordinance. Prior to oral argument, we ordered counsel for both parties to subm it supplemental briefs addressing the following question: “Does this Cour t have jurisdiction to hear this appeal where

Title 16.1 or Article 2 of Chapter 7 of Title 18.2 of the Code of Virginia. This ordinance incorporates a number of crim inal statutes and the reference to Code § 18.2-266 simply serves to identify the specific state statute upon whic h the County based its prosecution.

2 Code § 18.2-268.3(D) makes the first offense of refusal of a blood or breath test a civil offense over which we do not have jurisdiction. Code § 17.1-405; see also Commonwealth v. Rafferty , 241 Va. 319, 402 S.E.2d 17 (1991) (explaining that unreasonable refusal is civil and administrative proceeding); Thomas v. Commonwealth , 24 Va. App. 49, 480 S.E.2d 135 (1997) ( en banc ). We ordered that the appeal be transferred pursu ant to Code § 8.01-677.1 to our Supreme Court for review upon the completion of this appeal.- 4 - (a) the final order reflects that the prosecution was brought by the County under a local ordinance, and (b) the notice of appeal identified the Commonwea lth of Virginia and not the County of Amherst as the a ppellee?” Thus, before we can reach the merits in this case, we must first determine that we have jurisd iction to adjudicate this appeal.

II. A NALYSIS

A. The Commonwealth filed a supplemental brief arguing that we do not have jurisdiction to hear this matter because Woody did not join the County, an indispensa ble party, as a party to this appeal. The Commonwealth argues “where an appellant has failed to include an indispensable party in a timely filed notice of appeal, the appellate court is deprived of jurisdiction over the party and the appeal must be dism issed.” Supp. Appellee’s Br. at 4. 3 Woody concedes that the County was neither named as an appellee nor in cluded in the caption of his notice of appeal; however, he argues that Rule 5A:6 governing a no tice of appeal is not jurisdictional and the “County of Amherst suffered no prejudice as the ‘pr oper’ appellee.” Supp. Appellant’s Br. at 5. Woody reasons that “the attorney for the Co mmonwealth Attorney’s office who prosecuted [him] received timely notice of the appeal pursuant to Rule 5A:6 and all filings since that time from both parties have referenced this case without any confusion as to what was being appealed.” Id. For the following reasons, we conclude th at we lack jurisdiction to adjudicate this appeal. Our jurisprudence relating to a notice of appeal to this Cour t and the failure to join an indispensable party is well sett led. Code § 17.1-407 prescribes “[t]he notice of appeal in all

3 While the Attorney Genera l has responded and appeared, he did so as the legal representative of the Commonweal th and not the County of Amherst. “In all criminal cases before the Court of Appeals or the Supreme Cour t in which the Commonwealth is a party or is directly interested, the Attorney General shall appear and represent the Commonwealth.” Code § 2.2-551.- 5 - cases within the jurisdiction of the court shall be filed with the clerk of the trial court . . . and a copy of such notice shall be mailed or delivered to all opposing counsel and parties not represented by counsel . . . .” (E mphasis added). Further, “[t]he notice of appeal to the Court of Appeals shall be filed in every case w ithin the court’s appellate jurisdiction as provided in [Code] § 8.01-675.3.” Code § 17.1-408 (emphasis added). Code § 8.01-675.3, in turn, requires that “a notice of appeal . . . shall be filed within 30 days from the date of any final judgment order, decree or conviction.” (Emphasis added). Pursuant to its authority unde r Code § 8.01-3, our Supreme Cour t essentially incorporated all of these statutory requirements and promulgated Rule 5A:6: (a) Timeliness. — No appeal shall be allowed unless, within 30 days after entry of final judgment . . ., counsel files with the clerk of the trial court a notice of appeal , and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals.

* * * * * * * (d) Certificate. — The appellant shall include with the notice of appeal a certificate stating: (1) the names and addresses of a ll appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and tele phone number of any party not represented by counsel. (Emphasis added). We have, on several occasions, characterized this requirement as “mandatory.” E.g. , Watkins v. Fairfax County Dep’t of Family Services , 42 Va. App. 760, 774, 595 S.E.2d 19, 26 (2004). 4 If the notice of appeal is not filed within 30 days, “the notice is ‘ineffective’ and the appeal is never properly perfected.” Id. (quoting Zion Church Designers &

4 We note, however, that on October 31, 2008, our Supreme Court amended Rule 5A:6 to add a new subparagraph (f) which provides that “[n]o appeal shall be dismissed because the Notice of Appeal fails to identify a guardian ad litem or to provide notice to the guardian ad litem.” The amendment is effective January 1, 2009 and does not affect this analysis. This exception only applies to a guardian ad litem

.- 6 - Builders v. McDonald , 18 Va. App. 580, 583, 445 S.E.2d 704, 706 (1994) (recognizing that the time requirement is jurisdictional)).

B. The notice of appeal is an important aspect of appellate litigation for several reasons. First, it initiates the appeal. 5 Second, it gives notice to the part ies that the litigation is not yet over and the victory in the lower court may be short-lived. 6 Third, it transfers jurisdiction of the

case from the circuit court to the appellate court. Id. at 772, 595 S.E.2d at 25. And fourth, and most important for this case, it joins the indisp ensable and necessary part ies to the appeal and subjects them to the authority of the appellate court. Id. at 774, 595 S.E.2d at 26; Zion , 18 Va. App. at 584, 445 S.E.2d at 706. “The Supreme Court of Virginia has used the terms ‘indispensable parties’ and ‘necessary parties’ synonymously.” Watkins , 42 Va. App. at 765, 595 S.E.2d at 22 (citing Asch v. Friends of the Community of Mount Vernon Yacht Club , 251 Va. 89, 90-91, 465 S.E.2d 817, 818 (1996)). Accordingly, our Supreme C ourt has defined the terms broadly:

Where an individual is in the ac tual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the [appellant’s] claim, in such case he has an immediate interest in resisting the demand, and all pers ons who have such immediate interests are necessary parties to the suit.

* * * * * * *

5 “Filing the notice of appeal starts three important functi ons relating” to the appeal: (1) “[e]xamination and correcti on of the record before it leaves the clerk’s office,” (2) “[d]esignation for printing of those parts of the record needed to support trial rulings,” and (3) “[p]reparation of a brief in opposition to the appeal (although th is cannot be completed until after the petition for appeal is filed).” John L. Costello, Virginia Criminal Law & Procedure 1058 (4th ed. 2008).

6 We noted in Watkins that the “right to know when [ litigation] is ended is a valuable right” because “litigation is a serious and harassing matter.” Watkins , 42 Va. App. at 771, 595 S.E.2d at 25 (internal quotation marks and citations omitted).- 7 - [An indispensable party’s] interest in the subject matter of the suit, and in the relief sought, [is] so bound up with that of the other parties, that [its] legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to ente rtain the suit, when these parties cannot be subjected to its jurisdiction.

Asch , 251 Va. at 90-91, 465 S.E.2d at 818 (internal quotation marks and citations omitted). In this case, Woody filed a no tice of appeal within the ma ndatory thirty-day time period, but he never named the County as a party – neither as an appellant nor as an appellee. There is no doubt that the County is an indispensable party. It is clear from the record and the trial court’s October 30, 2008 order th at the County was the prosecu ting authority for the driving while intoxicated charge. It is also clear from the record that Woody named the Commonwealth of Virginia as appellee in his notice of appeal, pe tition for appeal, and opening brief of appellant. Further, in Woody’s certificate to his notice of appeal, Woody specifi cally stated, “[t]he name of appellee is The Commonwealth of Virginia.” The County obviously has a strong interest in prosecuting crimes such as driving while intoxicated because these violations present a real danger to the health and safety of its citizens. Having prevailed in the trial cour t, the County clearly has a substa ntial and immediate interest in opposing Woody’s appeal. Further, the County bear s the burden of the costs of the prosecution and, pursuant to Code §§ 19.2-340 and 46.2-1308, the County receives the be nefit of any fines the court imposes as a punishment. Thus, the C ounty’s “interest[] in the subject matter of the suit, and in the relief sought, [is] so bound up with that of the other parties, that [its] legal presence as [a] part[y] to the proceeding is an absolute necess ity, without which the court cannot proceed.” Asch , 251 Va. at 91, 465 S.E.2d at 818.- 8 - C. Woody argues that by serving his notice on the Commonwealth’s Attorney he effectively joined the County as a party. However, this case involved two simultaneous prosecutions – one on behalf of the Commonwealth (the refusal char ge) and one on behalf of the County (the DUI charge). While the Commonwealth ’s Attorney for Amherst Count y prosecuted both, in doing so she represented both the County and the Commonw ealth. Even though she received a copy of the notice of appeal, there was nothi ng in the notice that would aler t her or the County to the fact that Woody intended to appeal the DUI convict ion as well as the re fusal conviction. Woody also maintains that the “f ailure to strictly observe [these requirements] is an

‘insubstantial defect’ and does not deprive this Court of jurisd iction over his appeal because

there can be no doubt that he is appealing a judgment from the Amherst Circuit Court to the Court of Appeals.” Supp. Appellant’s Br. at 4. Even though Woody concedes the mandatory nature of the time requirement and the statements that must be made in the certificate, “he avers that captioning information is not a jurisdictiona l matter where, as in the case at bar, the opposing party and the Court of Ap peals can have no doubt as to th e issues it is being asked to address on appeal.” Id. at 5. However, our Supreme Court held in Asch , and we noted in Watkins , that “‘[t]he mere fact that an indispensable party who was a litigant in the trial cour t has notice that an appeal has been perfected against another litigant is not sufficient to confer [an appellate court’s] jurisdiction over the indispensabl e party against whom no appeal has been properly perfected.’”

Watkins , 42 Va. App. at 766, 595 S.E.2d at 22 (quoting Asch , 251 Va. at 93, 465 S.E.2d at 819). In other words, simply filing a notice of app eal within thirty days without joining all indispensable parties is not sufficient to transfer jurisdiction ov er the party from the circuit court

to this Court. Id. at 772, 595 S.E.2d at 25 (“[A] notice of appeal that entirely omits an- 9 - indispensable party fails to transf er jurisdiction over that party to the appellate court . . . .”). Further, even if Woody could prove that the County received actua l notice of the appeal and is not prejudiced by this defect, 7 actual notice of the appeal to the indispensable party does not cure this jurisdictional deficiency. Both this Court and our Supreme Court have une quivocally held that the failure to join an indispensable party is a juri sdictional defect that require s dismissal of the appeal. Asch , 251 Va. at 91, 465 S.E.2d at 818-19 (holding that the appeal must be dismissed because the Yacht Club was an indispensable party and the respondents failed to make the Yacht Club a party to the appeal); Watkins , 42 Va. App. at 765, 595 S.E.2d at 21-22 (holding a guardian ad litem is an indispensable party in termination of parental rights cases and the failure to include such a party requires dismissal); see also Jay v. Commonwealth , 275 Va. 510, 517, 659 S.E.2d 311, 315 (2008) (stating that “ dismissing rather than denying the appeal[]” renders the defect jurisdictional). Further, “an indi spensable party must be named in the notice of appeal in order to properly perfect the appeal.” Watkins , 42 Va. App. at 766, 595 S.E.2d at 22. Thus, “an appellant’s failure to name . . . an indispensa ble party, in either a not ice of appeal or an accompanying certificate of service, renders this Court powerless to exer cise jurisdiction over that indispensable party.” Id. at 770-71, 595 S.E.2d at 24-25; see also Asch , 251 Va. at 91, 465 S.E.2d at 818 (“[A] court lacks the power to proc eed with a suit unless all necessary parties are properly before the court.”). To adjudicate an appeal, this Court must ha ve jurisdiction over the appeal itself and the indispensable parties. Watkins , 42 Va. App. at 773, 595 S.E.2d at 26. Where one, or both, is

7 The County has not appeared as a party on any pleading filed in this Court. It has not filed a brief in opposition to Woody’s petition fo r appeal nor a brief in opposition to Woody’s opening brief. In fact, there is no evidence in the record that the County is even aware that this appeal is pending. Thus, the argument that the o pposing party is fully aware of the issues is completely unsupported by the facts.- 10 - lacking, we cannot adjudicate the ap peal. For this Court to obtain jurisdiction over an individual who was a party in the trial court, the party must be named in the notice of appeal. Otherwise, we lack jurisdiction over the person. “As the S upreme Court of Virginia has made plain, these rules have been designed to protect the appellee, not to penalize the appellant.” Id. at 771, 595 S.E.2d at 25. Therefore, contrary to Woody’s argument, the exclusi on of indispensable parties in the caption of the notice of appeal or in the certificate of servi ce is not a mere deficiency in formality, “failure to perform a discretionary act,” or “error of internal reference.” Id. at 770, 595 S.E.2d at 24 (internal quotation marks and cita tions omitted). Rather, it is a “failure to comply with a requirement made mandatory by both statute and rule,” an d, more importantly, it is a failure to transfer jurisdiction over the indispensable party from the trial court to the appellate court. Id. Here, even though we have jurisdic tion over the appeal itself, we do not have jurisdiction over the County – an indispensable party. Thus, we conclude that even though the appe llant filed a notice of appeal within the thirty-day time period, his failure to join an indispensable party within that mandatory time period deprives us of jurisdicti on to consider the appeal.

III. C ONCLUSION For the foregoing reasons, we dismiss Woody’s appeal.

Dismissed.