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Davis v. Williams

Court of Appeals of Virginia, Richmond
Feb 27, 2009
Record No. CL07-428 (Va. Ct. App. Feb. 27, 2009)

Opinion

Record No. CL07-428.

February 27, 2009.

Robert F. Rider, Esq., Roanoke, Virginia.

Robert S. Ballou, Esq., Johnson, Ayers Matthews, PLC, Roanoke, Virginia.


Dear Counsel:

Plaintiff filed a personal injury action against decedent prior to the expiration of the statute of limitations, but after an executor qualified on decedent's estate. In response to a special appearance made on behalf of decedent's executor to dismiss the case because no service of process occurred within one year, Plaintiff took a nonsuit. Within the six-month extension allowed by the nonsuit statute, Plaintiff refiled his lawsuit and presented a motion to substitute the executor of decedent's estate as the Defendant. Executor now makes another special appearance, this time arguing that because a suit against a decedent is a nullity at common law, when the statute of limitations ran against the decedent's personal representative, Plaintiff had no action to nonsuit, and if it could not be nonsuited, it certainly could not later be reinstated under the nonsuit statute. Therefore, he concludes, the substitution of decedent's executor as defendant should not be allowed. Plaintiff contends that the common law concept that a suit against a decedent is a nullity has been changed by statute, and, when read in conjunction with the nonsuit statute, substitution of the decedent's executor as defendant is not barred by the statute of limitations, and is allowed.

NULL AND VOID ACTIONS

Lawsuits against non-legal entities are null and void. Booth v. Dotson, 93 Va. 233, 235-236 (1896); § 1-230, Code of Virginia (1950), as amended. It is a nullity if you sue a tree stump, because a tree stump is not a legal entity. Such an action cannot be amended, nonsuited or reinstated, and it does not toll the statute of limitations. At common law, a personal action against a deceased person who no longer existed, and who no longer possessed any legal rights, was also a nullity. Such an action cannot operate to toll the statute of limitations, nor can an extension of time be granted to refile after a subsequent nonsuit. However, the legislature changed the common law rule regarding personal actions against decedents with its 1991 enactment of subparagraph (B) of § 8.01-229, Code of Virginia (1950), as amended. Parker v. Warren, 273 Va. 20, 23-24 (2007).

It is still a nullity to sue a dead person. However, the legislature has allowed that filing defect to be cured, ab initio, by amending the pleading to name the personal representative of the decedent as the actual defendant, provided that amendment is made within the time period of the statute of limitations or within two years of filing the lawsuit. See § 8.01-229 (B) (2) (b). In addition, if during that period of time when amendments are allowed the Plaintiff takes a nonsuit, his statutory right to amend his pleading to substitute the personal representative for the decedent is also extended for a term of six months after the entry of the nonsuit order, provided Plaintiff refiles his action and makes the necessary substitution motion within the six month extension. See § 8.01-229 (E) (3). That is precisely what happened in this case. Accordingly, Defendant's motion to dismiss is denied, Plaintiff's motion to substitute the personal representative of the decedent as the Defendant is granted, and Defendant is allowed twenty-one days after the entry of the order that grants Plaintiff's amendment to file his responsive pleadings.

Counsel for Plaintiff should prepare an appropriate order, incorporating this letter opinion by reference, and present it for entry after obtaining endorsement of counsel.


Summaries of

Davis v. Williams

Court of Appeals of Virginia, Richmond
Feb 27, 2009
Record No. CL07-428 (Va. Ct. App. Feb. 27, 2009)
Case details for

Davis v. Williams

Case Details

Full title:Judith D. Davis v. Gerald A. Williams City of Salem Circuit Court

Court:Court of Appeals of Virginia, Richmond

Date published: Feb 27, 2009

Citations

Record No. CL07-428 (Va. Ct. App. Feb. 27, 2009)