[Posted February 11, 2015] Okay, okay; I hear you. Several of my readers have written to me about the SCV’s recent unpublished order in Landini v. Bil-Jax, which may go down in our legal history as “the two-dollars-short case.” A lot of folks want my take on the decision, which became widely known after release of Peter Vieth’s excellent story about it this week. I’ve refrained until now from posting analysis of the court’s January 30 order for a couple of reasons.

In order to explain one of those reasons, I’m going to have to do something I almost never do on this site, and that’s to tell you that this was my case; I represented the appellant in the Supreme Court of Virginia. I generally don’t identify my own cases on this site because I don’t want my analysis to be seen as blowing my own horn when I win, or as sour grapes when I lose. But since Peter identified me and even quoted me, the pouch no longer contains a feline.

Here’s the story: This started out as a products-liability action, filed by a school division employee and his Workers’ Comp subrogee. The plaintiffs’ lawyer, who practices in the Roanoke area, prepared the suit papers for filing in Powhatan County, where the injury occurred. The suit sought damages of $2.5 million.

The lawyer, or someone on her staff, called a local circuit court in theRoanoke area to ask how much the filing fees were for a $2.5 million lawsuit. The answer was $344. The lawyer got a check in that amount and overnighted a package to the Powhatan clerk on September 2. The clerk duly received it the next day, September 3, which was six days in advance of the statute of limitations, since the injury had occurred on September 9, two years earlier. That looks like timely filing. Right?

Almost. The clerk held on to the package for six days before calling the lawyer on September 9. She told the lawyer, “Your filing fees are $2 short; it’s $346.” The difference, it seems, is that the previous year, PowhatanCounty had approved an increase in the library fee from $2 to $4.

The lawyer agreed to send another check for the shortfall. She mailed that out the next day, and when it arrived, the clerk stamped the pleading as filed – on September 13, four days after the statute of limitations deadline.

Keep in mind that when the clerk called, she only asked for the extra $2. She didn’t mention that she was holding off filing the suit in the meantime, so the lawyer didn’t know that time was still ticking.

The suit lay fallow for a year or so before the lawyer nonsuited, without ever serving the defendants. She refiled within six months, and then served process. She got her first hint of trouble when she received the defendants’ special pleas of the statute of limitations. Only then did she learn that her original suit had been datestamped four days after the deadline.

The trial court sustained the special pleas, finding that the plaintiff filed the original suit two years and four days after the injury. The Supreme Court granted a writ, and on January 30 it affirmed by that unpublished order.

The relevant statute is §17.1-275(A)(13). It lays out the statutory clerk’s fee for civil suits, and then says, “The fees prescribed above shall be collected upon the filing of papers for the commencement of civil actions.” The library fee is authorized in §42.1-70, but that statute doesn’t state that the fee has to be paid upon filing. Instead, §17.1-275(D) says, “In accordance with §42.1-70, the clerk shall collect fees under subdivisions … (A)(13) … to be designated for public law libraries.”

The Supreme Court’s order finds that this subsection is sufficient to bring the library fee into the mandatory-prepayment category. Accordingly, the library fee has to be paid upon filing of suit, so the initial one really was four days late.

Since I told you that I was the losing appellate lawyer, I should mention some of the arguments that I made that gained no traction at Ninth andFranklin. First, I argued that only the “fees prescribed above” had to be prepaid, by the precise language of §17.1-275(A)(13). I pointed out that both subsection D and §42.1-70 were below (A)(13) in the Code, so the only way to affirm would be to rule that the word above actually means “above or below or elsewhere in the Code.” I really thought that was a winner, but the court doesn’t mention it at all in the order.

Second, the appellees argued that making some fees mandatory-prepayable and others not would be unwieldy and turn clerks into creditors. My answer to that was that this was what the legislature has set up, and it isn’t up to courts to amend statutes in order to fix perceived problems in them. This issue isn’t mentioned in the order, and I’m reading tea leaves here, but in my heart of hearts, I believe that it was one of the tacit underpinnings of the affirmance. I think that the justices were at least subliminally leaning in favor of a neat, easy system in which all costs – even those that aren’t “above “ – must be prepaid.

Finally, I argued that Rules 3:2 and 3:3 state that a suit is commenced – and hence the statute of limitations is tolled – when the plaintiff delivers the suit papers to the clerk, and that the clerk “shall receive and file all pleadings when tendered, without order of the court.” But those rules aren’t mentioned in the Supreme Court’s order, either.

In the couple of days since Peter’s article, I’ve seen dozens of comments from lawyers, on both sides of the litigation aisle. Their reaction is uniform: they’re aghast at the decision as unduly harsh and inconsistent with the statutes and rules of court. Most of those lawyers can probably see themselves caught in a similar trap.

So, what are the key practical takeaways from this decision? Here are a few that I see:

First, you must file early, if at all possible. I don’t mean six days early; I mean way early. If this suit had been filed a month beforehand, we likely wouldn’t be having this discussion. Of course, I recognize that sometimes you can’t file a month in advance; sometimes the client comes to you five days before the statute runs. It’s quite possible that something like that happened to Landini’s lawyer here.

Second, hand-file your suit papers, and wait for the clerk to give you a datestamped copy of page 1 of your pleading. Filing in a remote corner of the Commonwealth? Enlist a local pal to hand-file it for you. It is no longer safe to assume that just because you have confirmation that the clerk of court has received the suit papers, your suit has been filed.

Third, remember that filing fees aren’t uniform throughout the Commonwealth. Perhaps they should be, but we aren’t living in an ideal world, and you have to practice law in this one. If you’re filing in a remote or unfamiliar court, call that court’s clerk – not one near your office – and get a quote on that court’s filing fee. You can also use the court system’s online filing-fee calculator. (So what happens if that calculator happens to give you an incorrect number, and you find yourself in the same position? I’m not sure, but this ruling seems to portend that you won’t get relief.)

Fourth, this is another instance of a judicial decision that interprets ordinary language in counter-intuitive ways. For example, there are plenty of cases that find that may means shall (or vice versa) in a given context. Here, the Supreme Court has ruled that a fee that’s prescribed below the mandatory-prepayment language is actually “above” it. I know it’s frustrating, and it detracts from the law’s predictability. But you can’t just ignore it because you think it’s wrong, or unfair.

Speaking of unfair, fifth, don’t think you can prevail on appeal merely because of what you perceive as patent unfairness in a legal procedure. In oral argument of this case in January, it was clear to me that the clerk’s delayed action – waiting six days before calling, and not mentioning that the suit still hadn’t been marked as filed – really bothered at least one of the justices, who shall remain nameless, but whose initials are Justice Mims. That was a decidedly good sign for me as I left the courtroom. But the court’s order is unanimous; that means I failed to persuade even him that this patently unfair process should be addressed.