Sidar v. Doe, Record No. 0837-23-4 (Va. Ct. App. Apr. 16, 2024)
A trial court clerk’s mistake becomes an appellee’s misfortune.
Facts. Jane Doe sued Cenk Sidar for several intentional torts. Sidar moved to dismiss the claims, but the circuit court, finding that the motion was not legitimately based in either law or fact, denied the motion and sanctioned Sidar. Doe nonsuited her claims, and Sidar appealed to the Supreme Court. On September 9, 2022, the Court refused Sidar’s petition for appeal.
Rule 1:1A allows an appellee to seek attorney fees and costs where an appellate judgment is favorable to the appellee and the appellee has recovered attorney fees or costs in the circuit court. The application, however, must be filed in the circuit court within 30 days after entry of the “final appellate judgment.” So, on October 7, 2022, Doe attempted to file a request for the attorney fees she incurred in responding to the appeal. The circuit court clerk’s office, however, would not accept her filing because it had not yet received the Supreme Court’s order. The trial court clerk eventually received a copy of the order on October 24, 2022, and Doe filed a new fee application on November 10, 2022.
Sidar objected, arguing that Doe’s application was untimely as it was filed more than 30 days after the Supreme Court’s September 9, 2022 order. The circuit court found that Doe could not have filed her request for attorney fees until the circuit court received the order on October 24, 2022. It therefore found that Doe’s application was timely and awarded her attorney fees. Sidar appealed.
Issue. Whether Doe’s motion was timely filed.
Holding. No. An application for attorney fees under Rule 1:1A must be filed within 30 days after entry of a final appellate judgment regardless of whether the appellate court has “returned” the case to the circuit court.
Notes. Rule 1:1A defines a “final appellate judgment” as “the issuance of the mandate by the appellate court or, in cases in which no mandate issues, the final judgment or order of the appellate court disposing of the matter.” Here, no mandate issued, therefore the Supreme Court’s September 9, 2022 order denying the petition for appeal was the final appellate judgment as it disposed of the matter. Rule 1:1B states that a circuit court retains concurrent jurisdiction for actions authorized by Rule 1:1A. Thus, the circuit court retained limited jurisdiction to hear the application even though the order had not yet been received in the circuit court.
The Court of Appeals recognizes the “substantial hardship” imposed on Doe by the circuit court clerk’s error in refusing to accept her first, timely-filed application, but offers little in the way of comfort, stating that these “unfortunate circumstances” do not entitle Doe to relief. If you are ever in a situation where the clerk refuses to accept a filing, you might point them to Rule 3:3, which states that “the clerk shall receive and file all pleadings when tendered.”