Edward H Bender v. Va Marine Resources Commission ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Humphreys and
Senior Judge Overton
EDWARD H. BENDER
MEMORANDUM OPINION *
v. Record No. 1783-02-1 PER CURIAM
APRIL 29, 2003
VIRGINIA MARINE RESOURCES COMMISSION
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
(Edward H. Bender, pro se, on brief).
(Jerry W. Kilgore, Attorney General; Carl
Josephson, Assistant Attorney General, on
brief), for appellee.
Edward H. Bender appeals the ruling of the Circuit Court of
Northampton County denying his motion for summary judgment and
dismissing his petition for appeal. On appeal, he contends the
trial court erred by 1) denying his motion for summary judgment,
2) dismissing his appeal, and 3) awarding VMRC attorney fees.
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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On August 22, 2001, Edward H. Bender petitioned the circuit
court "for relief from the . . . provisions of VMRC regulation 4
VAC 20-890-10 et seq." He alleged 4 VAC 20-890-25 failed to
conform with "required statutory authority" and that 4 VAC
20-890-30 was an "unconstitutional restriction on interstate
commerce." Bender served a copy of the petition only on "Carl
Josephson, Assistant Attorney General . . . in accordance with
Rule 2A:4."
On November 2, 2001, Bender moved the court for summary
judgment. Citing Rule 2:21, he alleged VMRC was in default for
failing to respond to his petition.
On June 14, 2002, the court entered its order denying
Bender's motion for summary judgment. The court also dismissed
Bender's appeal and awarded VMRC attorney fees.
Analysis
I.
Bender failed to provide the clerk of the circuit court
with VMRC's address when he filed his petition. Instead, he
specifically and deliberately caused process to be served upon a
named assistant attorney general.
Bender sought judicial review of fisheries regulation
amendments adopted by VMRC. Pursuant to Code § 28.2-215, such
review is governed by Code § 2.2-4025 et. seq., the
Administrative Process Act (APA). The procedure for judicial
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review under the APA is as provided by the Rules of the Supreme
Court of Virginia. Code § 2.2-4026. Rule 2A:4 specifically
requires that a petitioner shall take steps to cause a copy of
the petition to be served on the "agency secretary." Pursuant
to Code § 8.01-290, Bender was required to furnish the clerk in
writing the name and address of each defendant. Bender failed
to include VMRC's address. It is the responsibility of the
party initiating a cause of action to inform the clerk upon whom
process should be served. See Rule 2:4. Service of process on
the assistant attorney general was not the equivalent of service
of process on the agency secretary, as required. Therefore,
VMRC was not served with process, was not in default, 1 and the
trial court correctly denied Bender's motion for summary
judgment.
II. and III.
Code § 8.01-271.1, places upon a party the responsibility
to sign the pleading, motion, or other paper and certify
that (i) he has read the pleading, motion,
or other paper, (ii) to the best of his
knowledge, information and belief, formed
after reasonable inquiry, it is well
grounded in fact and is warranted by
existing law or a good faith argument for
the extension, modification, or reversal of
existing law, and (iii) it is not interposed
for any improper purpose, such as to harass
1
See Rule 2:7 which provides in pertinent part, "[a]
defendant is 'in default' if he had not filed a pleading and
. . . a period of more than twenty-one days has elapsed after
. . . due service of a subpoena in chancery upon him . . . ."
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or to cause unnecessary delay or needless
increase in the cost of litigation.
Moreover,
[i]f a pleading, motion, or other paper is
signed or made in violation of this rule,
the court . . . shall impose upon the person
who signed the paper or made the motion
. . . an appropriate sanction, which may
include an order to pay to the other party
or parties the amount of the reasonable
expenses incurred because of the filing of
the pleading, motion, or other paper or
making of the motion, including a reasonable
attorney's fee.
Code § 8.01-271.1.
The court noted Bender's frequent litigation against VMRC,
including previous unsuccessful attempts to appeal VMRC fishery
regulations. The court found Bender was aware of the APA and
the Rules and that he was involved in previous litigation which
specifically held he must serve the agency secretary to initiate
an action. 2 Bender's motion for summary judgment was not
well-grounded in fact and was not warranted by existing law or a
good faith argument for the extension, modification, or reversal
of existing law. We hold that the trial court did not abuse its
discretion by awarding sanctions, including attorney fees, to
VMRC and that it permissibly dismissed Bender's action. See
Bandas v. Bandas, 16 Va. App. 427, 438, 430 S.E.2d 706, 712
(1993).
2
See Bender v. Va. Marine Resources Comm'n, No. 1145-99-1
(Va. Ct. App. January 27, 2000).
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Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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