Present: All the Justices
ESTATE OF ROBERT JUDSON JAMES,
ADMINISTRATOR, EDWIN F. GENTRY, ESQ.
v. Record No. 081310
KENNETH C. PEYTON
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 2009
AMERICAN CASUALTY COMPANY
OF READING, PA
v. Record No. 081314
KENNETH C. PEYTON
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
In these consolidated interlocutory appeals arising from
a personal injury action, we consider whether the circuit
court erred in concluding that an amended motion for judgment
properly names an administrator of an estate rather than the
estate itself as a party defendant. Specifically, we consider
whether the language “Estate of Robert Judson James,
Administrator, Edwin F. Gentry, Esquire” names a proper party
to the personal injury action in question in these appeals.
BACKGROUND
Whether a pleading has adequately identified the proper
party to be sued is a question of law. Therefore, we review
the record de novo on appeal. Alcoy v. Valley Nursing Homes,
Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006); Wilby v.
Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003);
Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551
S.E.2d 313, 319 (2001).
On April 5, 2004, Kenneth C. Peyton filed a motion for
judgment 1 in the Circuit Court of Culpeper County against
Robert Judson James. Peyton alleged therein that on February
6, 2003, Peyton and James were involved in an automobile
accident in Culpeper County at the intersection of Virginia
Route 663 and U.S. Route 29. Peyton alleged that as a
proximate result of James’ negligent operation of his vehicle,
Peyton suffered various personal injuries. Peyton sought
$500,000 in damages.
At the time the April 5, 2004 motion for judgment was
filed, Peyton’s counsel was apparently unaware that James had
died on March 1, 2003 as a result of injuries he sustained in
the accident. James died intestate, and no administrator of
his estate had qualified at the time the action was filed.
On July 6, 2004, Peyton filed a “MOTION FOR LEAVE TO
AMEND MOTION FOR JUDGMENT/SUBSTITUTE ESTATE FOR DEFENDANT.”
1
The suit in this case was filed before we amended our
rules, effective January 1, 2006, to provide that a civil
action, which includes legal and equitable causes of action,
is commenced by filing a “complaint.” Rules 3:1 and 3:2; see
also Ahari v. Morrison, 275 Va. 92, 95 n.2, 654 S.E.2d 891,
893 n.2 (2008).
2
(Emphasis added.) In that motion, Peyton requested that the
circuit court grant “leave to substitute ‘the Estate of Robert
Judson James, Administrator, Edwin F. Gentry, Esq.’ for the
Defendant, Robert Judson James.” The motion further averred
that “the proper party is ‘the Estate of Robert Judson James,
Administrator, Edwin F. Gentry, Esq.’” A copy of the amended
motion for judgment appended to Peyton’s motion for leave to
amend styled the defendant as “the Estate of ROBERT JUDSON
JAMES, Administrator, Edwin F. Gentry, Esq.” The following
pertinent allegations of fact are made in the body of the
amended motion for judgment:
2. Defendant, Robert Judson James, was a
resident of Brandy Station, Virginia.
3. Robert Judson James died on March 1, 2003.
4. On June 28, 2004, Mr. Edwin F. Gentry, Esq.
qualified as the Administrator of the Estate of
Robert Judson James.
By an order dated July 7, 2004, the circuit court granted
Peyton’s motion for leave to amend. On the same day, the
clerk of the circuit court issued a notice of amended motion
for judgment to be served on Gentry.
On July 27, 2004, an answer and grounds of defense,
captioned in the style of the amended motion for judgment, was
filed. The pleading admitted that Gentry qualified as the
administrator of James’ estate. The pleading was signed:
3
ESTATE OF ROBERT JUDSON JAMES
By Counsel
Peyton obtained service of process of the amended motion
for judgment on American Casualty Company of Reading,
Pennsylvania, his uninsured motorist carrier. Thereafter,
American Casualty filed a response and grounds of defense on
October 6, 2004.
Ultimately, on March 27, 2008, a motion for summary
judgment was filed on behalf of “the Estate of Robert Judson
James, Administrator, Edwin F. Gentry, Esq.” 2 Principally
citing Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171-
72 (1996), it was contended in the motion that Peyton’s action
was a nullity because the named defendant was an estate. The
motion contained the further assertion that it was not
sufficient to include a reference to the personal
representative of the estate in the caption as “[t]his is not
merely a mis-ordering of words,” because “[t]he personal
representative and the estate are two different entities,”
2
The long interval between the filing of the initial
pleadings and the motion for summary judgment was occasioned
by ancillary proceedings, including the consolidation of this
case with Peyton’s action against another driver involved in
the same accident, the intervention of a workers’ compensation
carrier asserting a right of subrogation, and extensive
discovery. None of these proceedings, recounted in a
manuscript record of more than 1000 pages, are germane to
issues raised in these appeals.
4
and, thus, “naming the estate is not a misnomer” which could
be cured by a further substitution of the personal
representative of the estate.
On April 1, 2008, following a hearing conducted on the
motion for summary judgment, the circuit court ruled that
Peyton’s amended motion for judgment failed to properly
identify Gentry, in his capacity as administrator of James’
estate, as the defendant. Additionally, because Peyton’s
motion to amend had asserted that the “estate” was to be
substituted for the original defendant, the court ruled that
the amended motion for judgment had identified the estate, not
Gentry, as the defendant. Accordingly, the court sustained
the motion for summary judgment, ruling that Swann required
that an action maintained against an estate could not be
amended to substitute the personal representative since they
are separate, distinct entities.
Thereafter, on April 16, 2008, the circuit court
conducted a hearing upon Peyton’s motion to reconsider the
court’s April 1, 2008 order. At that hearing, Peyton sought
to distinguish Swann, contending that the amended pleading
identifying the defendant as “the Estate of Robert Judson
James, Administrator, Edwin F. Gentry, Esq.” was merely a
misnomer, not a misjoinder. Peyton requested the court to set
aside the prior order granting summary judgment and, pursuant
5
to Code § 8.01-6, to permit a further amendment of the motion
for judgment “correcting” the style of the defendant to be
“Edwin F. Gentry, Esq., Administrator of the Estate of Robert
Judson James.” This should be permitted, Peyton contended,
because Gentry had actual notice of the action and would not
be prejudiced by allowing the further amendment.
The circuit court initially announced its ruling from the
bench, stating: “It may be that the style of the amended
motion for judgment was not worded as one might expect. But
Mr. Gentry, upon further review, is correctly named as the
administrator. He is, in fact, the duly qualified
administrator by this Court and he was personally served with
process.” Reversing its prior determination, the court
concluded that the amended motion for judgment properly
identified Gentry, in his capacity as the administrator of the
estate, rather than the estate itself, as the defendant.
At the conclusion of the April 16, 2008 hearing, the
circuit court entered an order vacating the April 1, 2008
order. In that order, the court expressly ruled that “the
Defendant the estate of Robert Judson James, Administrator,
Edwin F. Gentry, Esquire, is a proper party pursuant to this
Court’s Order.”
Thereafter, on June 30, 2008 and pursuant to Code § 8.01-
670.1, the circuit court entered an order certifying an
6
interlocutory appeal to this Court on the issue whether “the
Defendant ‘The Estate of Robert Judson James, Administrator,
Edwin F. Gentry, Esquire’ is a proper party to the action.”
By orders dated November 8, 2008, we awarded these appeals,
consolidating them for argument and decision.
DISCUSSION
Initially, we observe that the party filing a civil
action has an obligation to express the nature of the claim
being asserted, and the identity of the party against whom it
is asserted, in clear and unambiguous language so as to inform
both the court and the opposing party of the nature of the
claim being made. See, e.g., Ford Motor Co. v. Benitez, 273
Va. 242, 251-52, 639 S.E.2d 203, 207 (2007); Hensley v.
Dreyer, 247 Va. 25, 30, 439 S.E.2d 372, 375 (1994). Thus,
when there is an ambiguity in the pleading, whether as a
result of a defect in form or lack of clarity in the
allegations made, the proponent has the burden to show that
the pleading is sufficient to identify the claims being
asserted and the party alleged to be liable on those claims.
The motion for judgment filed by Peyton on April 5, 2004
was proper in form in that it clearly stated a claim for
personal injuries allegedly suffered by Peyton as a result of
the negligence of Robert Judson James, who was identified in
both the caption and throughout the body of the pleading as
7
the defendant. The record does not disclose whether, prior to
filing the pleading, Peyton’s counsel was aware that James had
died on March 1, 2003.
Prior to July 1, 1991, an action “filed against a
deceased party was a nullity.” Parker v. Warren, 273 Va. 20,
24, 639 S.E.2d 179, 181 (2007) (citing Rennolds v. Williams,
147 Va. 196, 198-200, 136 S.E. 597, 597-98 (1927)). “Thus, if
a litigant filed a personal action against a defendant who,
possibly unbeknownst to the plaintiff, had died, . . . the
statute of limitations would continue to run.” Id. Nor could
the error, even if unintentional, be cured by substituting the
executor or administrator of the deceased party’s estate
“because the personal representative was a person distinct
from the decedent, the mistaken naming of the decedent was not
a misnomer and substitution of the personal representative did
not relate back to the initial filing of the lawsuit.” Id.
(citing Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471,
472 (1971)); see also Swann, 252 Va. at 184, 476 S.E.2d at
172.
However, an amendment of Code § 8.01-229 in 1991 adding
subsection (B)(2)(b) altered this long-standing rule “by
providing that [an action] filed against a defendant who was
deceased when the action was filed could be amended to
substitute the decedent’s personal representative.” Parker,
8
273 Va. at 24, 639 S.E.2d at 181. Code 8.01-229(B)(2)(b)
provides:
If a person against whom a personal action may
be brought dies before suit papers naming such
person as defendant have been filed with the court,
then such suit papers may be amended to substitute
the decedent’s personal representative as party
defendant before the expiration of the applicable
limitation period or within two years after the date
such suit papers were filed with the court,
whichever occurs later, and such suit papers shall
be taken as properly filed.
Pursuant to Code § 8.01-229(B)(2)(b), Peyton’s July 6,
2004 motion to amend the original motion for judgment was
clearly authorized under the circumstances of this case.
However, the amended motion for judgment remained subject to
the rule requiring the motion to be clear and unambiguous in
expressing the identity of the party the plaintiff intends to
name as the defendant and upon what basis that party is liable
to the plaintiff. Here, unless the amended motion for
judgment clearly identified Gentry, in his representative
capacity, as the party being substituted as the party
defendant in place of James, Code § 8.01-229(B)(2)(b) would
not permit the substitution of a separate party defendant.
Peyton acknowledges that the proper format for
identifying a personal representative of an estate as a party
defendant in a pleading is to list the personal representative
by name followed by a description of the capacity in which he
9
or she is being sued. He contends, however, that the
“syntactical difference” between the proper form for such
pleadings and the form used in the caption of his amended
motion for judgment in this case is of no moment because “the
words ‘Estate of Robert Judson James, Administrator, Edwin F.
Gentry, Esq.’ . . . share the same meaning as ‘Edwin F.
Gentry[,] Esq., Administrator, Estate of Robert Judson
James.’ ” Peyton further contends that even if the circuit
court erred in determining that the form of the amended
pleading was adequate to identify Gentry in his representative
capacity as the party defendant, the defect in the pleading
was nonetheless merely a misnomer and subject to correction by
amendment. This is so, he maintains, because unlike Swann,
where the named party was only identified as the estate
without reference to a personal representative in the original
action filed, here the pleading identified Gentry as the
personal representative in both the caption and the body of
the pleading, and Gentry had actual notice of the action. We
disagree.
In addition to discussing this same issue in Swann, we
have addressed analogous issues in cases involving other types
of relationships that require a person or entity that is not
capable of appearing sui juris to sue or be sued through a
fiduciary in a representative capacity. In such cases, the
10
courts are required to determine whether the identification of
the party comported with a recognized statutory form. If it
did not, the courts must determine whether the defect in the
pleading constituted a misnomer, where the right person or
entity was made a party but was incorrectly named in the
pleading, or a misjoinder, where the person or entity
identified by the pleading was not the person by or against
whom the action could, or was intended to be, brought. See,
e.g., Cook v. Radford Community Hosp., Inc., 260 Va. 443, 451,
536 S.E.2d 906, 910 (2000). Where there is a misjoinder of a
party who cannot sue or be sued directly, there is a
corresponding nonjoinder of the fiduciary who is the proper
party. The distinction is significant. It is permissible by
amendment of the deficient pleading to correct a misjoinder
under Code § 8.01-5, a misnomer under Code § 8.01-6, and a
nonjoinder under Code §§ 8.01-5 and 8.01-7. However, the
statutes distinguish the circumstances under which the
permitted correction will relate back to the original filing,
effectively tolling the statute of limitations.
In that regard, Code § 8.01-6, in pertinent part,
provides that:
An amendment changing the party against whom a claim
is asserted, whether to correct a misnomer or
otherwise, relates back to the date of the original
pleading if (i) the claim asserted in the amended
pleading arose out of the conduct, transaction, or
11
occurrence set forth in the original pleading, (ii)
within the limitations period prescribed for
commencing the action against the party to be
brought in by the amendment, that party or its agent
received notice of the institution of the action,
(iii) that party will not be prejudiced in
maintaining a defense on the merits, and (iv) that
party knew or should have known that but for a
mistake concerning the identity of the proper party,
the action would have been brought against that
party.
In similar fashion, Code § 8.01-6.1 permits this relation back
for amendments changing or adding a claim or defense, and Code
§ 8.01-6.2(A) permits the same for amendments regarding a
party’s trade name or corporate name. 3
Moreover, even when correction of a misjoinder and
nonjoinder is permitted, the amendment is only allowed to
bring in a proper defendant. Likewise, a new plaintiff may
3
While the parties in this appeal do not reference Code
§ 8.01-6.2(B), that statute provides that when an action is
“filed against an estate of a decedent, and filed within the
applicable statute of limitations, naming the proper name of
the estate of the deceased and service is effected or
attempted on an individual or individuals as executor [or]
administrator . . . of the estate, such filing tolls the
statute of limitations for such claim in the event the
executor [or] administrator . . . of the estate [is] unable to
legally receive service at the time service was attempted, or
defend suit because [his] authority . . . excludes defending
said actions, or [his] duties . . . had expired at the time of
the service or during the time of defending said action.”
While we express no opinion with regard to the scope of
the application of this statute, we note that by its express
terms it is inapplicable in this case because Gentry was
legally able to receive service of the suit under the proper
name of James’ estate.
12
not be substituted for an original plaintiff who lacked
standing to bring the action. Chesapeake House on the Bay,
Inc. v. Virginia National Bank, 231 Va. 440, 442-43, 344
S.E.2d 913, 915 (1986); see also Wells v. Lorcom House
Condominiums’ Council of Co-Owners, 237 Va. 247, 253, 377
S.E.2d 381, 384 (1989); Bardach Iron & Steel Co. v. Tenenbaum,
136 Va. 163, 173, 118 S.E. 502, 505 (1923).
In Cook, an action was filed in the name of a person who
had been declared incompetent and for whom a guardian had been
appointed. The trial court denied a motion to amend the
pleading to reflect that the guardian was the proper party
plaintiff, ruling that the defect could not be cured by
amendment and dismissed the action. 260 Va. at 446, 536
S.E.2d at 907. On appeal, we affirmed the judgment,
concluding that the error in filing the action in the name of
the incompetent constituted a misjoinder, not a misnomer. Id.
at 451, 536 S.E.2d at 910.
Similarly, in Miller v. Highland County, 274 Va. 355, 650
S.E.2d 532 (2007), we considered whether an action which named
a locality as a party defendant, rather than the locality’s
governing body, was subject to correction as a misnomer.
Holding that the relevant statutory provision under which the
action was brought required the action to be against the
governing body, we concluded that there had not been a
13
misnomer because the plaintiff “did not incorrectly name the
right entity[, the governing body], but named a different
entity[, the locality].” Id. at 368, 650 S.E2d at 537.
We used the same rationale in Swann to conclude that
“[t]he personal representative of a decedent and the
decedent’s ‘estate’ are two separate entities; the personal
representative is a living individual while the ‘estate’ is a
collection of property.” Swann, 252 Va. at 184, 476 S.E.2d at
172. Accordingly, we held that “one cannot be substituted for
another under the concept of correcting a misnomer.” Id.
As in Cook and Miller, there was no dispute in Swann as
to whether the pleading naming the incorrect party could have
been interpreted as actually naming the proper party. In each
case, respectively, the pleading clearly named the
incompetent, the locality, and the estate, not the guardian,
the governing body, or the personal representative. Thus,
while these cases are instructive in resolving the present
appeals, we must first consider whether the circuit court
erred in ruling that Peyton’s amended motion for judgment
adequately identified Gentry, in his representative capacity,
as the party defendant.
We addressed a similar “syntactical” conundrum in Herndon
v. St. Mary’s Hospital, Inc., 266 Va. 472, 587 S.E.2d 567
(2003). In that case, we were required to consider whether
14
the parents of a minor child could bring an action in their
own names as next friend of the child, rather than in the name
of the child by them as his next friends. We concluded that
under the applicable statute an action for the benefit of a
minor child must be brought in the name of the child by a next
friend because the “established rule is that the minor child,
not the next friend, is the real party in interest in such an
action.” Id. at 476, 587 S.E.2d at 570. Accordingly, we held
that the trial court did not err in dismissing the action,
since the parents were not entitled to maintain the action for
the child in their own names. Id. at 477, 587 S.E.2d at 570.
Although we were not required to address the question whether
the court should have allowed the substitution of the child,
by his parents as next friends, as the proper party, it is
clear that, as in Cook, such an amendment would not have been
allowed since the failure to name the proper party plaintiff
cannot be cured by an amendment.
In determining the adequacy of a pleading to identify a
party, we consider the pleading as a whole. Thus, whether a
party named in a caption is a proper party to the action is to
be determined not merely by how that party is identified in
the caption of the pleading, but by the allegations set forth
within a pleading that identify that party more specifically.
15
See McCormick v. Romans, 214 Va. 144, 147, 198 S.E.2d 651, 653
(1973).
As Peyton conceded during oral argument of these appeals,
the amended motion for judgment is not a model of clarity.
Indeed, there is a patent ambiguity between the caption of the
amended motion for judgment and the allegations within that
pleading. The caption identifies “the Estate of Robert Judson
James, Administrator, Edwin F. Gentry, Esq.” as the defendant;
the allegations within the motion for judgment refer to the
“Defendant, Robert Judson James.” Although Peyton states in
the motion for judgment that James died and that Gentry
qualified as administrator of James’s estate, nothing within
the body of the pleading clearly identifies Gentry in his
capacity as administrator of James’ estate as the party
defendant. To the contrary, when the term “defendant” is used
in the allegations of fact, the term clearly refers to James,
as when, for example, it is alleged that Peyton’s vehicle was
struck by “Defendant’s vehicle.”
Just as in Herndon, where the order of the words
identified the parents, not the child, as the plaintiffs who
were further described as the “next friends” of the child,
here, the most straightforward reading of the amended motion
for judgment identifies “the Estate of ROBERT JUDSON JAMES” as
the party defendant. While the caption of the pleading goes
16
on to identify Gentry as the administrator of the estate and
the body of the pleading recites the fact of his qualification
as administrator, at best these references only serve to
identify James’ estate more specifically. They simply do not
name Gentry, rather than the estate, as the party defendant
when the pleading is read as a whole. Accordingly, we hold
that the circuit court erred in ruling that the amended motion
for judgment identified Gentry, in his capacity as
administrator of James’ estate, as the party defendant.
Because we have determined that the estate was the party
defendant named by the amended motion for judgment, it follows
that this case is controlled by Swann, unless there is merit
in Peyton’s contentions that Swann can be distinguished on the
ground that despite the “misnomer” of the proper party
defendant, here Gentry, the proper party, was identified in
the amended motion for judgment and was actually served with
that pleading. Accordingly, Peyton contends that there would
be no prejudice in allowing a correction of the “misnomer.”
We disagree with those contentions.
Peyton has misapprehended the difference between
“misnomer” and “misjoinder.” As was explained above, a
“[m]isnomer arises when the right person is incorrectly named,
not where the wrong defendant is named.” Swann, 252 Va. at
184, 476 S.E.2d at 172; see also Cook, 260 Va. at 451, 536
17
S.E.2d 910; Rockwell, 211 Va. at 561, 179 S.E.2d at 472. Code
§ 8.01-6 permits the correction of a misnomer where the party
that was identified by the wrong name has notice and otherwise
will not suffer prejudice by the amendment, and the statute
relates the amendment back to the original filing, effectively
tolling the statute of limitations. In this case, the wrong
defendant was named, and Code § 8.01-6 is not applicable to
such a misjoinder. Accordingly, the circuit court’s original
determination to award summary judgment and to dismiss
Peyton’s action in this case was correct, because a misjoinder
is simply not subject to being legitimized by substituting the
correct party. The only resolution in such a case, in the
absence of a statute of limitations bar, is to commence a new
action against the proper party.
CONCLUSION
For these reasons, we hold that the circuit court erred
in setting aside the order of April 1, 2008 awarding summary
judgment to the Estate of Robert Judson James and in
permitting the amended motion for judgment to be maintained
against Edwin F. Gentry in his capacity as administrator of
the estate. Accordingly, the court’s order of April 16, 2008
will be reversed, and because the applicable statute of
limitations now bars Peyton’s action, final judgment will be
entered here for the estate and American Casualty.
18
Record No. 081310 – Reversed and final judgment.
Record No. 081314 – Reversed and final judgment.
19