Opinion
Record Nos. 071303, 071304.
June 6, 2008.
Upon appeals from orders entered by the Circuit Court of the City of Hampton. Circuit Court Nos. CL05-1083-00, CL05-1081-00.
Upon consideration of the record, briefs and argument of counsel, the Court is of opinion that these appeals should be dismissed for the appellants' failure to comply with the provisions of Rule 5:9(a).
Carol West Judkins and Sabrina Dewalt were former employees of Dillard's, Inc., which owned and operated a retail store in Hampton. They filed identical motions for judgment against Dillard's and two of its employees, claiming damages for malicious prosecution. The plaintiffs' pleadings alleged that the defendants had falsely and maliciously charged them with embezzlement and procured their prosecution on that charge, but at the conclusion of the Commonwealth's evidence in the General District Court, their motions to strike the Commonwealth's evidence had been granted and the charges dismissed.
The defendants responded with motions to compel arbitration, showing that the plaintiffs, while employed by Dillard's, had been parties to an arbitration agreement requiring them to submit to binding arbitration certain controversies that might arise between the parties. The circuit court heard argument on the motions in both cases, reviewed the briefs and pleadings, and ruled from the bench that the arbitration agreement, by its terms, did not cover the dispute between the parties and that the cases could proceed to trial.
The circuit court delivered its oral ruling on March 20, 2007. Identical orders were entered in the two cases, overruling the motions to compel arbitration, on April 10, 2007. On April 4, 2007, after the court's oral ruling but before the entry of its written orders, the defendants filed with the clerk of the circuit court a notice of an interlocutory appeal to this Court in each case, pursuant to Code § 8.01-58l.016. No other notices of appeal were filed.
Code § 8.01-581.016 confers jurisdiction on this Court to review, by an interlocutory appeal, an order denying a motion to compel arbitration. Amchem Prods., Inc. v. Asbestos Cases Plaintiffs, 264 Va. 89, 96, 563 S.3E.2d 739, 742-43 (2002).
Rule 5:9(a) provides: "No appeal shall be allowed unless, within 30 days after the entry of final judgment or other appealable order or decree, counsel for the appellant files with the clerk of the trial court a notice of appeal and at the same time mails or delivers a copy of such notice to all opposing counsel." (Emphasis added.) This rule is mandatory, not merely directory. Rule 5:5(a); Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974) (applying predecessor Rule 5:6). We have consistently required strict adherence to its terms. See, e.g., Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283-84, 568 S.E.2d 671, 673 (2002) (notice of appeal invalid because signed only by foreign counsel).
The rule provides a thirty-day period within which a notice of appeal must be filed. That period begins to run when the order appealed from is entered by the trial court. A trial court "speaks only through its written orders," Rose v. Jaques, 268 Va. 137, 147, 597 S.E.2d 64, 70 (2004), and an order is entered when it is signed by the trial judge. Rule 1:1; Morgan v. Russrand Triangle Assocs., 270 Va. 21, 26, 613 S.E.2d 589, 591 (2005); Peyton v. Ellyson, 207 Va. 423, 430-31, 150 S.E.2d 104, 110 (1966). A notice of appeal filed outside that thirty-day period, whether before it begins to run or after it has expired, does not comply with the rule and is invalid.
Because the notices of appeal did not comply with the requirements of Rule 5:9(a), these appeals are dismissed as improvidently awarded.
This order shall be published in the Virginia Reports and shall be certified to the said circuit court.