COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Frank and Clements 

JOHN E. SOMERS, II 

 MEMORANDUM OPINION* 

v. Record No. 2899-00-1 PER CURIAM 

 MAY 29, 2001 

ACCOMACK COUNTY DEPARTMENT 

 OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 (Barry Kantor; Grady A. Palmer, III; 

Christie & Kantor, P.C., on brief), for 

appellant. 

 No brief for appellee. 

 (Mark L. Earley, Attorney General; Ashley L. 

Taylor, Jr., Deputy Attorney General; 

Siran S. Faulders, Senior Assistant Attorney 

General; Cheryl A. Wilkerson, Assistant 

Attorney General, on brief), for Virginia 

Department of Social Services. 

 John E. Somers, II, appeals the decision of the circuit court 

dismissing his petition for appeal from an administrative hearing 

conducted by the Virginia Department of Social Services (VDSS). 

On appeal, Somers contends that the circuit court erred in (1) 

dismissing his appeal on the basis that he incorrectly described 

the adverse party's name in the caption of the petition for 

appeal; (2) finding the appeal did not contain a misnomer when the 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
correct party appeared although the petition incorrectly described 

the adverse party's name; and (3) refusing to grant leave to amend 

the petition to add the proper party. Somers asks us to reverse 

the circuit court's dismissal and remand the case. Upon reviewing 

the record and briefs of the parties, we conclude that this appeal 

is without merit. Accordingly, we summarily affirm the decision 

of the trial court. See Rule 5A:27. 

 On appeal, we view the evidence and all reasonable 

inferences in the light most favorable to appellee as the party 

prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250, 

391 S.E.2d 344, 346 (1990). 

Procedural Background

 Somers filed a petition appealing a decision of the VDSS in 

the circuit court. The only respondent named in the petition 

was the Accomack County Department of Social Services (ACDSS). 

VDSS had been served a copy of the petition and made a special 

appearance by a Plea in Bar/Motion to Dismiss on the ground that 

the agency rendering the challenged decision had not been made a 

party to the appeal. The circuit court granted the plea and 

dismissed the petition, finding that Somers had failed to 

perfect his appeal because he did not include the name of VDSS 

in the caption of his petition. Somers filed a Motion to Vacate 

Order of Dismissal and Motion for Leave to Amend Bill of 

Complaint. The circuit court denied these motion, and Somers 

timely appealed. 

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Discussion

I. 

The Administrative Process Act does not 

prescribe the procedure for perfecting an 

appeal from the agency to the circuit court. 

Code § 9-6:14:16 authorizes the Supreme 

Court to establish these by rule, and they 

are contained in Part Two A, Appeals 

Pursuant to the Administrative Process Act. 

Rule 2A:2 provides that a party shall file a 

notice of appeal with the agency secretary. 

Rule 2A:4 provides that within 30 days of 

filing the notice, the party shall file a 

petition for appeal with the clerk of the 

circuit court. The filing of the petition 

shall include all the steps established in 

Rules 2:2 and 2:3 (the procedures for 

initiating an equity bill of complaint and 

having the clerk issue a subpoena in 

chancery). 

Bendele v. Commonwealth, 29 Va. App. 395, 397, 512 S.E.2d 827, 

828 (1999). 

 Rule 2:2 provides, in pertinent part: 

 A suit in equity shall be commenced by 

filing a bill of complaint in the clerk's 

office. The suit is then instituted and 

pending as to all parties defendant 

thereto. . . . 

 The bill shall be captioned with the 

name of the court and the full style of the 

suit. . . . 

 . . . Without more it will be 

understood that all the defendants mentioned 

in the caption are made parties defendant 

. . . , that proper process against them is 

requested . . . . 

 Somers named only ACDSS in the caption, failing to make 

VDSS a party to the appeal. "Generally, rules governing appeal 

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procedures are mandatory and 'compliance with them is necessary 

for the orderly, fair and expeditious administration of 

justice.'" Mayo v. Dep't of Commerce, 4 Va. App. 520, 522, 358 

S.E.2d 759, 761 (1987) (citation omitted). The naming of the 

defendants in the caption in the petition for appeal of an 

agency case decision is mandatory, as indicated by the General 

Assembly's use of the word "shall." See Sours v. Virginia Bd. 

for Architects, 30 Va. App. 313, 318, 516 S.E.2d 712, 715 

(1999). 

 Both Code § 9-6.14:16 and Rule 2A:1(b) require that the 

agency rendering a case decision be made a party to the judicial 

review proceeding. The trial court correctly found that by 

naming only ACDSS in the caption, Somers failed to make VDSS a 

party to the action. 

II. 

 "Misnomer arises when the right person is incorrectly 

named, not where the wrong defendant is named." Swann v. Marks, 

252 Va. 181, 184, 476 S.E.2d 170, 172 (1996). Somers named only 

ACDSS in its appeal. ACDSS and VDSS "are two separate entities 

. . . [t]hus, one cannot be substituted for another under the 

concept of correcting a misnomer." Id. 

 "A general appearance 'is a waiver of process, equivalent 

to personal service of process, and confers jurisdiction of the 

person on the court.'" Gilpin v. Joyce, 257 Va. 579, 581, 515 

S.E.2d 124, 125 (1999) (quoting Nixon v. Rowland, 192 Va. 47, 

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50, 63 S.E.2d 757, 759 (1951)). However, VDSS did not make a 

general appearance before the court. Instead, VDSS specially 

appeared to challenge the court's jurisdiction. By making a 

special appearance, VDSS did not thereby submit to the 

jurisdiction of the court. The trial court correctly found that 

the proper party was not before the court and that a misnomer 

had not occurred. 

III. 

 When Somers named ACDSS as respondent in his petition for 

judicial review, he did not provide VDSS with formal notice 

constituting process "which informed[ed] the opposing party of 

the litigation and instruct[ed] the party when and where it must 

respond." Bendele, 29 Va. App. at 399, 512 S.E.2d at 829. This 

failure was jurisdictional, and the circuit court did not have 

the authority to extend time limits to allow for the amendment 

of pleadings. Identifying the correct party respondent must be 

accomplished during the thirty-day period prescribed in Rule 

2A:4. "The absence of an express provision in Part Two A of the 

Rules empowering the circuit court to extend the time limits 

prescribed in Rule 2A:4 is persuasive evidence that no such 

provision applies to petitions for circuit court review of 

administrative agency decisions." Mayo, 4 Va. App. at 524, 358 

S.E.2d at 761. Because the circuit court did not have 

jurisdiction over the proceeding, it correctly concluded that it 

had no authority to allow an amendment of the pleadings. 

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 Accordingly, the dismissal by the circuit court is summarily 

affirmed. 

 Affirmed.

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