Uninsured Employers' Fund v Todd E. Coyle, et al.

Tuesday 	19th
March, 1996.
Uninsured Employers' Fund,
Appellant,
against 	Record No. 1531-95-2
Claim No. 168-13-90
Todd E. Coyle, et al.,
Appellees.
From the Virginia Workers' Compensation Commission
Before Judges Baker, Elder and Fitzpatrick
The record in this matter was filed with this Court on July
20, 1995. 	Pursuant to Rule 5A:19(b)(1), the opening brief was due on
August 29, 1995. 	Appellant did not file an opening brief by that
date, nor did it file a motion for an extension of time to file the
opening brief. 	Rather, on September 5, 1995, appellant moved to
extend the time to file the opening brief and also submitted its
opening brief on that date. 	Appellee Todd E. Coyle has moved to
dismiss the appeal on the basis that the opening brief was not timely
filed.
Rule 5A:19(b)(1) reads: 	"The appellant shall file the
opening brief in the office of the clerk of the Court of Appeals
within 40 days after the date of the filing of the record in such
office." 	(Emphasis added.) 	The word "shall" is generally used in an
imperative or mandatory sense. 	See Mayo v. Commonwealth, 4 Va. App.
520, 523, 358 S.E.2d 759, 761 (1987). 	We find nothing in the rule to
indicate that we should interpret the word otherwise.1 Consequently,
1In so holding, we recognize that the opening brief is not listed

in order for an opening brief to be timely, it must, within forty days
after the filing of the record, (1) be delivered to the clerk of this
Court, or (2) be mailed in accordance with Rule 5A:3(c).
Furthermore, while Rule 5A:3(b) allows an appellant to move
to extend the time for filing an opening brief, this rule must be read
in conjunction with other relevant provisions of the rules. 	We hold
that an appellant may move to extend the time to file an opening
brief, but our authority to address the motion cannot extend beyond
the authority granted to us to process the opening brief itself.
Accordingly, a motion to extend the time to file an opening brief
must, within forty days after the filing of the record, (1) be
delivered to the clerk of this Court, or (2) be mailed in accordance
with Rule 5A:3(c).
Under Rule 5A:19(b)(1), an opening brief must be timely
filed; yet, that rule fails to provide a sanction for noncompliance.
To determine the appropriate sanction, we look to Rule 5A:26, which
reads: 	"If neither party has filed a brief in compliance with these
Rules, the Court of Appeals may dismiss the appeal. 	If one party has
but the other has not filed such a brief, the party in default will
not be heard orally, except for good cause shown." 	If an appellant
has failed to meet the mandatory filing requirement for an opening
brief, then, at that point in time, "neither party has filed a brief
in compliance with these Rules." 	In such a case, Rule 5A:26 permits
us to dismiss the appeal.
in Rule 5A:3(a) as one of the documents that carries a mandatory
filing date. 	However, we interpret the term "mandatory," as used in
that rule, to mean that this Court, absent authority granted elsewhere
by statute or rule, has no power to extend the time for filing these
documents. 	In this light, therefore, our use of the term "mandatory"
as it relates to opening briefs differs from the use of the term in
Rule 5A:3(a).

Applying this reasoning to the facts of this case, we
conclude that the appeal should be dismissed. 	Appellant was obligated
to file the opening brief, or a motion to extend the time for filing,
by August 29, 1995.2 It failed to do so. 	Accordingly, we hold that
(1) the motion to extend the time for filing the opening brief was not
timely filed and is denied; (2) the opening brief was not filed in
compliance with Rule 5A:19(b)(1); and (3) the appeal is dismissed.
Because this issue occurs with sufficient regularity that
members of the bar may benefit from the directives herein, the Clerk
is directed to publish this order.
This order shall be certified to the Virginia Workers'
Compensation Commission.
A Copy,
Teste:
Clerk
2Extensions of time for filing will only be granted for good
cause. 	An appellant who does not obtain an order extending the
time for filing within the forty day period delays at its own
peril a determination by the Court that good cause does not exist
to extend the time for filing.