PRESENT: All the Justices 

WELLMORE COAL CORPORATION 

 PER CURIAM 

v. Record No. 011755 September 13, 2002 

 

HARMAN MINING CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 In this appeal, we consider whether a notice of appeal that 

was signed only by a foreign attorney, in violation of Rule 1A:4 

of the Rules of this Court, requires granting a motion to 

dismiss. 

I. Facts and Proceedings Below 

 We recite only those facts relevant to the issue of 

dismissal of this appeal. Sovereign Coal Sales, Inc. 

(“Sovereign”), Harman Mining Corporation (“Harman”), and 

Wellmore Coal Corporation (“Wellmore”) entered into a coal 

supply agreement in 1997. Sovereign and Harman subsequently 

filed a motion for judgment against Wellmore, alleging bad faith 

and breach of the 1997 agreement. Sovereign, Harman, and 

Wellmore were each represented by foreign counsel, in 

association with members of the Virginia State Bar, pursuant to 

Rule 1A:4 of the Rules of this Court. David B. Fawcett, III 

(“Fawcett”), an attorney licensed in Pennsylvania, was admitted, 

pro hac vice, to represent Harman and Sovereign. Jeff A. Woods 
(“Woods”), an attorney licensed in Kentucky, was admitted, pro

hac vice, to represent Wellmore. 

 After a lengthy trial, the jury returned a verdict in favor 

of Harman and Sovereign and awarded damages in the amount of $6 

million. On May 1, 2001, the trial court sent a letter to 

Fawcett and Woods, informing them that “[a]s a result of 

Counsels’ inability to agree to terms of the Final Judgment 

Order . . . the [c]ourt has constructed an Order of its own for 

entry which will be entered effective May 7, 2001.” 

 On May 7, 2001, Pamela J. Fleming (“Fleming”), secretary to 

the trial judge, mailed the final order to Fawcett with a cover 

letter stating, “[p]ursuant to Judge Williams’ letter of May 1, 

2001, enclosed herewith is the Final Judgment Order entered May 

7, 2001.” The order had been signed by the trial judge, and the 

face of the order instructed: “Enter this Final Judgment Order 

this 7th day of May, 2001.” In her letter, Fleming instructed 

Fawcett to endorse the order and forward it to Woods for his 

signature. Fawcett endorsed and forwarded the order to Woods on 

May 14, 2001, and on June 1, 2001, Woods’ paralegal handdelivered the fully endorsed order to Fleming. 

 Wellmore filed a notice of appeal, signed only by Woods. 

It was received and filed in the office of the Clerk for the 

Circuit Court for Buchanan County on June 5, 2001. On June 28, 

2001, Wellmore filed a notice of entry of appearance of Wayne T. 

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Horne (“Horne”), an attorney from Grundy, Virginia, for 

Wellmore. Also on June 28, Wellmore filed an amended notice of 

appeal “to add additional counsel.” Horne signed the amended 

notice of appeal. 

 This Court granted Wellmore’s petition for appeal by order 

dated February 21, 2002, and the parties submitted briefs on the 

merits of their arguments. On April 30, 2002, Harman and 

Sovereign filed a motion to dismiss Wellmore’s appeal based upon 

Wellmore’s failure to comply with Rule 1A:4 and untimely filing 

pursuant to Rule 5:9(a). Harman and Sovereign maintain that 

because Wellmore’s June 5, 2001 notice of appeal was signed only 

by foreign counsel, the notice was invalid. They further argue 

that the amended notice of appeal, which complied with Rule 

1A:4, was untimely because it was filed beyond the 30-day time 

period required by Rule 5:9(a). Harman and Sovereign argue that 

a valid and timely notice of appeal was not filed; consequently, 

this Court does not have jurisdiction to hear the appeal. 

 Wellmore argues that the May 7, 2001 order was 

“conditional” and did not become a final order until it was 

fully endorsed by all parties, which occurred no earlier than 

June 1, 2001. Therefore, Wellmore maintains that the amended 

notice of appeal was timely filed on June 28, 2001. In the 

alternative, Wellmore argues that even if the order was final on 

May 7, 2001, and the June 5, 2001 notice of appeal was “invalid” 

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pursuant to Rule 1A:4, the original notice was not “void.” 

Accordingly, Wellmore maintains that the defect in signature was 

curable pursuant to Code § 8.01-428(B). 

II. Analysis 

 Rule 5:9(a) provides that “[n]o appeal shall be allowed 

unless, within 30 days after the entry of final judgment . . . 

counsel for the appellant files with the clerk of the trial 

court a notice of appeal. . . .” Rule 5:1(b)(13) clarifies that 

the “date of entry” of any final judgment “shall be the date the 

judgment . . . is signed by the judge.” In the present case, 

the face of the final order plainly indicates that it was signed 

by the trial judge on May 7, 2001. Contrary to the assertion 

made by Wellmore, there was nothing “conditional” about the 

entry of final judgment. 

 Wellmore filed a notice of appeal on June 5, 2001, within 

the 30-day period required by Rule 5:9(a). However, the notice 

of appeal was signed only by Woods, Wellmore’s foreign counsel. 

Rule 1A:4 governs the practice of law by foreign attorneys in 

Virginia. In pertinent part, the Rule states: “Except where a 

party conducts his own case, a pleading, or other paper required 

to be served (whether relating to discovery or otherwise) shall 

be invalid unless it is signed by a member of the Virginia State 

Bar.” 

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 The term “invalid” is defined as “[n]ot legally binding.” 

Black’s Law Dictionary 829 (7th ed. 1999). Accordingly, 

pursuant to Rule 1A:4, the notice of appeal, filed on June 5, 

2001, was not legally binding; therefore, it had no legal 

effect. The June 28, 2001 amended notice was filed beyond the 

30-day period contained in Rule 5:9(a). While titled “amended 

notice,” an amendment presupposes a valid instrument as its 

object. Because the June 5, 2001 notice of appeal was invalid, 

there was nothing to amend. 

 Wellmore maintains that the invalidity of the June 5, 2001 

instrument was curable pursuant to Code § 8.01-428(B), which 

provides: “Clerical mistakes in all judgments or other parts of 

the record and errors therein arising from oversight or from an 

inadvertent omission may be corrected by the court at any time 

on its own initiative or upon the motion of any party . . .” 

Wellmore asserts that the purpose of Code § 8.01-428(B) is to 

allow for correction of defects in form. According to Wellmore, 

the lack of the required signature on its notice of appeal 

constitutes such a defect. Therefore, Wellmore maintains that 

the amended notice of appeal served to correct the defect in 

form in the original notice, pursuant to Code § 8.01-428(B). 

 We recognize that Code § 8.01-428(B) provides for the 

correction of clerical errors; however, the signature defect at 

issue in the present case is not a “clerical error” as 

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contemplated by the Code. “Scrivener’s or similar errors in the 

record, which are demonstrably contradicted by all other 

documents, are clerical mistakes.” Zhou v. Zhou, 38 Va. App. 

126, 133, 562 S.E.2d 336, 339 (2002). Such errors cause the 

court’s record to fail to “speak the truth.” Id. (citing School 

Bd. of the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 

Va. 550, 555, 379 S.E.2d 319, 322 (1989)). Examples of clerical 

errors include a typographical error made by a court reporter 

while transcribing a court proceeding, Lamb v. Commonwealth, 222 

Va. 161, 165, 279 S.E.2d 389, 392 (1981), or an unintended error 

in the drafting of a divorce decree, Dorn v. Dorn, 222 Va. 288, 

291, 279 S.E.2d 393, 394 (1981). The failure of Wellmore’s 

Virginia counsel to append his signature to the notice of 

appeal, as required by Rule 1A:4, does not constitute a clerical 

error contemplated by Code § 8.01-418(B); accordingly, Code 

§ 8.01-428(B) provides Wellmore no relief in the present case. 

Based upon the failure of the notice of appeal to comply 

with Rule 1A:4 and the filing of the amended notice outside the 

30-day requirement of Rule 5:9(a), we will grant Harman’s and 

Sovereign’s motion to dismiss Wellmore’s appeal. See School Bd. 

of the City of Lynchburg, 237 Va. at 556-57, 379 S.E.2d at 323. 

Dismissed.

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