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contractbreach of contractdamagesattorneyappealtrialpleamotioncorporationbad faithmotion to dismiss
attorneydiscoveryappealpleamotionwillcorporationbad faithmotion to dismiss

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Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671

Facts

Sovereign Coal Sales, Inc., Harman Mining Corporation, and Wellmore Coal Corporation entered into a coal supply agreement in 1997. After a trial, the jury awarded $6 million in damages to Harman and Sovereign for breach of contract and bad faith against Wellmore. Wellmore filed a notice of appeal signed only by foreign counsel, which was deemed invalid under Virginia law, leading to a dispute over the timeliness and validity of the appeal.

Sovereign Coal Sales, Inc. (“Sovereign”), Harman Mining Corporation (“Harman”), and Wellmore Coal Corporation (“Wellmore”) entered into a coal supply agreement in 1997. Sovereign and Harman subsequently filed a motion for judgment against Wellmore, alleging bad faith and breach of the 1997 agreement. Sovereign, Harman, and Wellmore were each represented by foreign counsel, in association with members of the Virginia State Bar, pursuant to Rule 1A:4 of the Rules of this Court.

Issue

Whether a notice of appeal signed only by a foreign attorney, in violation of Rule 1A:4, requires granting a motion to dismiss.

In this appeal, we consider whether a notice of appeal that was signed only by a foreign attorney, in violation of Rule 1A:4 of the Rules of this Court, requires granting a motion to dismiss.

Rule

Rule 1A:4 states that a pleading or other paper required to be served shall be invalid unless it is signed by a member of the Virginia State Bar.

Rule 1A:4 governs the practice of law by foreign attorneys in Virginia. In pertinent part, the Rule states: “ Except where a party conducts his own case, a pleading, or other paper required to be served (whether relating to discovery or **673 otherwise) shall be invalid unless it is signed by a member of the Virginia State Bar.”

Analysis

The court determined that the notice of appeal filed by Wellmore was invalid because it was signed solely by foreign counsel, which did not comply with Rule 1A:4. The court further noted that the amended notice of appeal was filed beyond the 30-day period required by Rule 5:9(a), rendering it untimely. The court concluded that the signature defect was not a clerical error that could be corrected, as it did not fall within the scope of Code § 8.01–428(B).

The court determined that the notice of appeal filed by Wellmore was invalid because it was signed solely by foreign counsel, which did not comply with Rule 1A:4. The court further noted that the amended notice of appeal was filed beyond the 30-day period required by Rule 5:9(a), rendering it untimely. The court concluded that the signature defect was not a clerical error that could be corrected, as it did not fall within the scope of Code § 8.01–428(B).

Conclusion

The Supreme Court dismissed Wellmore's appeal due to the invalidity of the original notice of appeal and the untimeliness of the amended notice.

Based upon the failure of the notice of appeal to comply with Rule 1A: 4 and the filing of the amended notice outside the 30–day requirement of Rule 5:9(a) , we will grant Harman's and Sovereign's motion to dismiss Wellmore's appeal.

Who won?

Harman Mining Corporation and Sovereign Coal Sales, Inc. prevailed because the court found that Wellmore's notice of appeal was invalid and did not comply with the necessary legal requirements.

Harman and Sovereign maintain that because Wellmore's June 5, 2001 notice of appeal was signed only by foreign counsel, the notice was invalid.

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