The Perilous Relationship Between Civil Filing Fees and the Expiration of a Statutory Limitations Period
A recent unpublished order of the Supreme Court of Virginia explored the relationship between payment of required civil filing fees and the running of the statute of limitations. The result of the appeal underscores the complexity of Virginia civil procedure. It also highlights the potential high cost of a procedural mis-step, no matter how slight.
In Landini v. Bil-Jax, Inc., Record No. 140591 (January 30, 2015), the Supreme Court ruled that the Powhatan County Circuit Court (“trial court”) did not err in dismissing with prejudice a personal injury action. In the trial court, the plaintiff sued the alleged tortfeasors responsible for injuring him during the performance of his duties as an assistant band director for the county’s pubic school system. The complaint’s ad damnum sought some $2.5 million in damages. The school system’s workers compensation carrier joined the suit as a party plaintiff, asserting its subrogation right to any special damages that Landini might recover.
Landini originally brought suit seven days prior to the running of the two-year limitations period, applicable under Va. Code § 8.01-243(A). Trial counsel mailed the complaint and associated papers, along with a check intended to cover the filing fees required by Va. Code § 17.1-275(A)(13). The court’s clerk’s office received the materials the next day, however, the clerk did not then file the lawsuit. Instead, the clerk’s office determined the check’s amount to be short by $2.00. That office informed counsel of the shortage on the day the limitations period expired. Counsel mailed a check for the $2.00, the clerk’s office received it, and, four days after expiration of the limitations period, the clerk filed the lawsuit. Landini later nonsuited, and, within the time allowed by Va. Code § 8.01-229(E)(3), refiled the lawsuit and served the defendants.
The defendants filed a plea in bar seeking a dismissal, asserting the time-bar of the limitations period. The trial court conducted a hearing and sustained that plea and dismissed the lawsuit. Landini moved for a rehearing, which motion the trial court considered and denied. Landini then appealed, and the Supreme Court granted his petition for appeal.
In its order, the Supreme Court described Landini’s rehearing motion, and his principal argument. Landini attributed the $2.00 shortage, “to the [local law] library assessment collected under Code § 42.1-70. Landini argued that the action was timely filed because Code § 17.1-275 (A) (13), which lists the clerk’s fees to be paid at the time of filing, does not require payment of the library fee.” [Clarification added]. Thus, Landini contended, the clerk properly should have filed the lawsuit on the day of its receipt, some six days prior to the expiration of the limitations period.
Landini asserted that same argument before the Supreme Court, to no avail. The Court agreed that Va. Code § 17-275(A)(13) does not specifically list the library fee of Va. Code § 42.1-70, as one of the fees prerequisite to the filing of a civil action seeking monetary damages. Nevertheless, it held that a subpart (D) of Va. Code § 17.1-275 incorporated the library fee into those that the clerk must collect pursuant to § 17.1-275(A)(13). That legislative mandate served to foreclose Landini’s argument:
However, Code § 17.1-275 (D) commands that “[i]n accordance with § 42.1-70, the clerk shall collect fees under subdivision …A 13…to be designated for public law libraries.” Given this express integration, Landini’s argument fails. The library fee is to be collected with the clerk’s fee assessed under Code 17.1-275 (A) (13), at the time of filing. Thus, because the library fee was not tendered in full until after the expiration of the limitations period, Landini’s suit was not timely filed.
How can attorneys avoid such an unfortunate result? Does the answer lie in continuing legal education about the finest points of Virginia civil procedure? Or, does it lie in the legislative drafting process? That is, does the integration of one statutory subpart’s mandate into another, such as that involved in this case, present undue opportunities for attorney error? Must an attorney follow-up every suit filing in a clerk’s office to confirm its actual and timely filing, and to address any issues potentially preventing such filing? What are the most effective solutions to such procedural complexities and pitfalls? I’m interested your thoughts!