COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Alexandria, Virginia 

BURTON O. SOURS, JR., 

 FAIRFAX COUNTY SURVEYOR 

 OPINION BY 

v. Record No. 1716-98-4 JUDGE LARRY G. ELDER 

 JULY 27, 1999 

VIRGINIA BOARD FOR ARCHITECTS, 

 PROFESSIONAL ENGINEERS, LAND 

 SURVEYORS AND LANDSCAPE ARCHITECTS, 

 AND HAROLD A. LOGAN 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Jr., Judge 

 Karen J. Harwood, Deputy County Attorney 

(David P. Bobzien, County Attorney; Jan L. 

Brodie, Senior Assistant County Attorney, on 

briefs), for appellant. 

 William A. Diamond, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Richard B. Zorn, Senior Assistant Attorney 

General, on brief), for appellee Virginia 

Board for Architects, Professional 

Engineers, Land Surveyors and Landscape 

Architects. 

 No brief or argument for appellee Harold A. 

Logan. 

 Burton O. Sours, Jr., (appellant) appeals from a ruling of 

the Fairfax County Circuit Court dismissing his appeal from a 

decision issued by the Virginia Board for Architects, 

Professional Engineers, Land Surveyors and Landscape Architects 

(the Board) under the Virginia Administrative Process Act 

(VAPA), Code §§ 9-6.14:1 through 9-6.14:25. On appeal, he 
contends the circuit court (1) erred in holding that timely 

payment of the statutory writ tax and clerk’s fees is 

jurisdictional; (2) erred in holding that Rule 1:9 of the Rules 

of the Supreme Court does not apply to actions filed pursuant to 

Part Two A of the Rules; and (3) abused its discretion in 

denying his request for leave to pay the writ tax and clerk’s 

fees. For the reasons that follow, we reverse the ruling of the 

circuit court and remand for further proceedings. 

I. 

FACTS 

 Harold A. Logan, a licensed land surveyor, filed a 

complaint with the Commonwealth’s Department of Professional and 

Occupational Regulation (the Department), alleging that 

appellant violated various sections of the Virginia Code by 

altering subdivision plans prepared by Logan. Appellant, the 

Fairfax County Surveyor, took the position that his alteration 

of Logan’s plans occurred in the course of his duties as the 

County Surveyor and did not violate the Code. Following an 

investigation and informal fact-finding conference pursuant to 

the VAPA, Code § 9-6.14:11, the Board concluded that appellant 

“utilized the work of another professional without the 

professional’s consent” and issued an order to that effect on 

January 5, 1998. Although appellant was represented in those 

proceedings by the County Attorney’s office, the Board’s order 

was against appellant alone. 

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 Appellant timely filed his notice of appeal on February 5, 

1998, and timely filed his petition for appeal on March 9, 1998. 

The petition listed appellant as “BURTON O. SOURS, JR., Fairfax 

County Surveyor,” and was signed by the County Attorney. The 

clerk’s office charged no filing fee. The petition for appeal 

was served on Logan on April 3, 1998, and on the Board on 

April 6, 1998. 

 The Board moved to dismiss the petition on the ground that 

the petition for appeal was not timely filed because appellant 

did not pay the statutory writ tax and clerk’s fees. It posited 

that the clerk filing the petition did not collect the tax and 

fees because the County Attorney was representing appellant. 

The Board contended, however, that the proceedings were against 

appellant in his individual capacity as a licensed surveyor and 

were independent of his employment with the county and that, as 

a consequence, the tax and fees were due. 

 Appellant argued that the actions for which he was 

sanctioned were performed in the course of his duties as the 

County Surveyor and that the clerk acted properly in not 

requiring him to pay the writ tax and clerk’s fees. 

Alternatively, he argued that Rules 2:2 and 2A:4 do not require 

that the tax and fees be paid within the thirty-day appeal 

period and that Rule 1:9 gave the circuit court discretion to 

permit payment of the tax and fees beyond the thirty-day period. 

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 The circuit court rejected appellant’s argument that he was 

not required to pay the writ tax and clerk’s fees and held that 

their timely payment was a necessary condition to the perfection 

of his appeal. Appellant moved the court to exercise its 

discretion under Rule 1:9 to permit payment of the tax and fees 

at that time. In a hearing on the motion, the circuit court 

said that “if 1:9 controls, I would readily grant this motion.” 

It ultimately denied the motion on the ground that “[i]t is 

mandatory to file the fee.” 

 Appellant noted his appeal to this Court. He has not 

appealed the circuit court’s ruling that he was statutorily 

required to pay the writ tax and clerk’s fees. 

II. 

ANALYSIS 

 Part Two A of the Rules of the Supreme Court governs the 

appeal from a case decision of an agency pursuant to the VAPA. 

Rule 2A:4 provides, in relevant part, as follows: 

(a) Within 30 days after the filing of the 

notice of appeal, the appellant shall file 

his petition for appeal with the clerk of 

the circuit court named in the first notice 

of appeal to be filed. Such filing shall 

include all steps provided in Rules 2:2 and 

2:3 to cause a copy of the petition to be 

served (as in the case of a bill of 

complaint in equity) on the agency secretary 

and on every other party. 

The thirty-day period in which to file a petition for appeal of 

an agency case decision is mandatory, as indicated by the 

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General Assembly’s use of the word, “‘shall.’” Mayo v. 

Department of Commerce, 4 Va. App. 520, 523, 358 S.E.2d 759, 761 

(1987). “‘The purpose of the specific time limit is not to 

penalize the appellant but to protect the appellee. If the 

required papers are not [timely] filed, the appellee is entitled 

to assume that the litigation is ended, and to act on that 

assumption.’” Id. (quoting Avery v. County Sch. Bd., 192 Va. 

329, 333, 64 S.E.2d 767, 770 (1951)). Furthermore, “[t]he 

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.” Id. at 524, 358 S.E.2d at 

762. For these reasons, the timely filing of a petition for 

appeal of an agency decision is jurisdictional. 

 We have never expressly considered whether payment of the 

writ tax and clerk’s fees within the thirty-day period for 

filing the petition also is jurisdictional. A careful 

examination of the Rules and relevant statutes leads us to 

conclude that it is not. 

 Rule 2A:4(a) provides that the filing of a petition for 

appeal “shall include all steps provided in Rules 2:2 and 2:3 to 

cause a copy of the petition to be served” on the necessary 

parties. Rule 2:2 provides that “[t]he statutory writ tax and 

clerk’s fees shall be paid before the subpoena in chancery is 

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issued.” Code §§ 58.1-1727 to 58.1-1729 contain more general 

provisions governing the payment of writ taxes. Such taxes are 

imposed, inter alia, “upon (i) the commencement of every action, 

in law or chancery, in a court of record, whether commenced by 

petition or notice, ejectment or attachment.” Code § 58.1-1727. 

Like Rule 2:2, Code § 58.1-1729 provides that “[n]o clerk shall 

issue a writ, or docket any removed or appealed warrant, or any 

notice mentioned in this article until the tax imposed under 

this article has been paid,” but it also provides that “[the 

clerk’s] failure to collect the tax shall not invalidate the 

proceeding.” Therefore, the Rules and related statutes 

contemplate that the clerk will not direct service of the 

petition until the writ tax and clerk’s fees have been paid, but 

Code § 58.1-1729 provides expressly that the clerk’s failure to 

collect the writ tax is not fatal to the proceeding. See Davis 

v. McCall, 133 Va. 487, 492, 113 S.E. 835, 837 (1922) (holding 

that the fact plaintiff did not pay writ tax before clerk issued 

writ “was a matter between the clerk and the commonwealth, and 

. . . [that payment] was not such a necessary condition 

precedent to the issuing of the writ as to entitle the defendant 

to set it up in bar of the action”). Nothing in the statutes or 

rules contravenes the application of this approach in VAPA 

appeals. See Rule 2A:5 (providing that “[f]urther proceedings 

[in VAPA appeals] shall be held as in a suit in equity and 

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[that] the rules contained in Part Two, where not in conflict 

with the Code [or Part Two A of the Rules], shall apply . . .”). 

 Here, the clerk effected service of the petition without 

requiring payment of the writ tax and fees. Viewing Rules 2A:4 

and 2:2 and Code § 58.1-1729 in light of our holding in Mayo, we 

conclude that payment of the writ tax and clerk’s fees is not 

jurisdictional as long as the petition is otherwise served in 

compliance with the rules.1 As we indicated in Mayo, the purpose 

of the filing requirement in Rule 2A:4 is to keep the prevailing 

party apprised of the status of the case and allow him to assume 

the matter has ended if the non-prevailing party does not timely 

request appellate relief. See 4 Va. App. at 523, 358 S.E.2d at 

761. Here, appellant’s non-payment of the writ tax and clerk’s 

fees did not deprive appellee of notice of the appeal. 

Therefore, we hold that payment of the writ tax and clerk’s fees 

within the thirty-day period for filing the petition for appeal 

 1

 Although service here occurred within thirty days of 

filing of the notice of appeal, the rules do not mandate that 

service be effected within that time frame. See Rule 2A:4. 

Rule 2A:4 requires only that the appellant shall complete all 

acts required of him within that thirty-day period. Under Rule 

2:4, “[n]o decree shall be entered against a defendant who was 

served with process more than one year after institution of the 

suit against him unless the court finds as a fact that the 

plaintiff exercised due diligence to have timely service on 

him.” See Rule 2A:5; see also Rule 3:3 (providing same one-year 

limit for service of motions for judgment filed in actions at 

law). 

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is not mandatory and not jurisdictional. Accordingly, we 

conclude that the circuit court erroneously granted appellee’s 

motion to dismiss. 

 Further, we hold that the trial court had the discretion 

under Rule 1:9 to permit appellant to pay the writ tax and 

clerk’s fees after service of the petition for appeal, even 

though Rule 2A:4 contemplates payment of the tax and fees before 

service. Rule 2A:5 provides that following the filing of a 

petition for appeal under the VAPA, 

[f]urther proceedings shall be held as in a 

suit in equity and the rules contained in 

Part Two, where not in conflict with the 

Code of Virginia or this part [Part Two A], 

shall apply, but no matter shall be referred 

to a commissioner in chancery. The 

provisions of Part Four shall not apply and, 

unless ordered by the court, depositions 

shall not be taken. 

Therefore, pursuant to Rule 2A:5, the circuit court, in 

overseeing an administrative appeal, retains all authority 

it would have in a suit in equity other than as expressly 

excluded in that rule or relevant statutes. Manifestly, suits 

in equity are governed by those rules in Part One, which 

contains “GENERAL RULES APPLICABLE TO ALL PROCEEDINGS.” 

Therefore, in VAPA appeals, the circuit court may rely on all 

rules in Part One which would be applicable to suits in equity 

under Part Two to the extent they do not conflict with the VAPA 

or Part Two A of the Rules. 

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 Rule 1:9, entitled “Discretion of Court,” provides as 

follows: 

 All steps and procedures in the clerk’s 

office touching the filing of pleadings and 

the maturing of suits or actions may be 

reviewed and corrected by the court. 

 The time allowed for filing pleadings 

may be extended by the court in its 

discretion and such extension may be granted 

although the time fixed already has expired; 

but the time fixed for the filing of a 

motion challenging the venue shall in no 

case be extended except to the extent 

permitted by § 8.01−264. 

As discussed above, Rule 2A:4 requires that the petition for 

appeal be filed and that the filing include all steps required 

to cause the petition to be served on the necessary parties. 

Therefore, Rule 1:9’s second paragraph, permitting the court to 

extend the time for filing pleadings, does not apply to the 

filing of a petition for appeal under the VAPA. Cf. Mayo, 4 Va. 

App. at 523-24, 358 S.E.2d at 761-62 (without expressly 

considering applicability of Rule 1:9, holding that thirty-day 

time limit of Rule 2A:4 for filing of petition for appeal is 

jurisdictional and may not be extended). However, because we 

previously have held that payment of the writ tax and clerk’s 

fees is not jurisdictional, the circuit court may apply Rule 

1:9’s paragraph 1 to correct the clerk’s error in not collecting 

the writ tax and clerk’s fees upon the filing of appellant’s 

petition for appeal and prior to service of the petition. 

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 Here, the circuit court stated expressly that it would have 

granted the motion if Rule 1:9 applied, but it erroneously 

believed that Rule 1:9 did not apply. Therefore, we reverse and 

remand to the circuit court for payment of the writ tax and 

clerk’s fees and further proceedings consistent with this 

opinion. 

Reversed and remanded.

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Bumgardner, J., concurring. 

 I concur in the result, but I do not join in the majority 

opinion which I believe speaks more broadly than necessary. 

 The appellant timely filed his petition for appeal, but the 

clerk of court assessed no fee, so none was paid. Process 

issued and was served timely and properly. The failure of the 

clerk to assess the correct writ tax should not invalidate the 

proceeding. See Code § 58.1-1729. 

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