Present: All the Justices
MARISSA AHARI, AS ADMINISTRATOR
AND REPRESENTATIVE OF
ALEXANDRA AHARI, DECEASED
v. Record No. 070146 OPINION BY JUSTICE CYNTHIA D. KINSER
January 11, 2008
DENNIS C. MORRISON, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we determine whether the operative
filing date of an amended complaint is the date on which a
motion for leave to amend is filed or the date on which a
trial court enters an order granting leave to amend.
Because Rule 1:8 requires leave of court to amend any
pleading after it is filed, we conclude that the circuit
court did not err by holding that an amended complaint is
not deemed filed, and is thus without legal efficacy, until
a trial court grants leave to amend.
Marissa Ahari, as administrator and representative of
the estate of Alexandra Ahari (the decedent), filed a
complaint on March 1, 2006, naming Fairfax County, Virginia
and the Commonwealth of Virginia as defendants. In the
complaint, Ahari alleged that the defendants had a duty to
maintain and repair roadway and street surfaces so as to
keep them in a reasonably safe condition for travel by the
public and that they failed to do so, thereby causing the
decedent to lose control of her vehicle on May 18, 2004
while traveling on Baron Cameron Avenue in Fairfax County.
Ahari further alleged that the decedent died as a result of
injuries sustained in the accident.
On May 15, 2006, three days before the expiration of
the applicable statute of limitations, see Code § 8.01-243,
Ahari moved for leave to file an amended complaint. Along
with the motion, Ahari tendered the proposed amended
complaint that, among other things, added as party
defendants Dennis C. Morrison, Robert Driscoll, and John
Doe I, II, and III, all of whom were allegedly employees of
the Virginia Department of Transportation.1 On July 28,
2006, the circuit court granted Ahari’s motion for leave to
file an amended complaint but reserved for further argument
the question as to the operative filing date of the amended
complaint.
The defendants named in the amended complaint then
filed a plea of the statute of limitations. Citing Rule
1:8 and this Court’s decision in Mechtensimer v. Wilson,
1
Subsequent to Ahari’s motion for leave to file an
amended complaint, the circuit court, at Ahari’s request,
dismissed Fairfax County as a party in this case with
prejudice. The circuit court also dismissed the
Commonwealth as a party based on its plea in bar asserting
sovereign immunity, likewise with prejudice. Future
references in this opinion to “the defendants” will not
include Fairfax County or the Commonwealth.
2
246 Va. 121, 431 S.E.2d 301 (1993), they argued that the
amended complaint was without legal efficacy until July 28,
2006, the date the circuit court granted Ahari’s motion for
leave to amend. According to the defendants, the
applicable statute of limitations expired before that date
and thus barred the claims asserted against them in the
amended complaint.
Ahari countered by pointing out that Rule 3:2 states
that a civil action is commenced by filing a complaint in
the clerk’s office and that Rule 3:3 directs a clerk to
“receive and file all pleadings when tendered, without
order of the court.” Thus, according to Ahari, the amended
complaint was filed when she tendered it to the clerk along
with the motion for leave to amend on May 15, 2006, and the
action with respect to the new party defendants was
commenced on that date, which was before the expiration of
the applicable statute of limitations. Relying on numerous
decisions from courts in other jurisdictions, Ahari argued
that an amended complaint is deemed filed for purposes of
tolling a statute of limitations on the date a motion for
leave to amend, along with the amended complaint, are
filed. Ahari claimed that to hold otherwise would ignore
the fact that a plaintiff has no control over when a trial
court may enter an order granting a motion for leave to
3
amend. Ahari also noted that instead of filing the motion
for leave to amend she could have filed a new complaint,
paid the required filing fee, and the result would be the
same with respect to tolling the running of the statute of
limitations.
After hearing argument, the circuit court granted the
defendants’ plea of the statute of limitations and
dismissed the action with prejudice. The court explained
that “pursuant to Rule 1:8 . . . and legal precedent, there
is no ability of [a] plaintiff to file an amended pleading
save by leave of [c]ourt, and leave of court was not
obtained in this case until July 28, 2006, which is the
amended complaint’s operative date.”
Now on appeal to this Court, Ahari asserts that the
circuit court erred by granting the defendants’ plea of the
statute of limitations despite the fact that she filed the
motion for leave to amend and tendered the amended
complaint before the expiration of the statute of
limitations. Ahari, as well as the defendants, present the
same arguments here as they did before the circuit court.
To resolve the issue before us, we must determine the
operative filing date of an amended complaint. Is that
date when a motion for leave to amend is filed with the
clerk and the amended complaint is tendered, as Ahari
4
contends, or is the operative date of filing when a trial
court enters an order granting leave to amend? This
question presents an issue of law, which we review de novo.
See Westgate at Williamsburg Condominium Ass’n v. Philip
Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118
(2005).
In relevant part, Rule 1:8 states: “No amendments
shall be made to any pleading after it is filed save by
leave of court.” The effect of this Rule was at issue in
Mechtensimer where the plaintiff filed an amended motion
for judgment without first obtaining leave of court to do
so.2 246 Va. at 122, 431 S.E.2d at 301. The defendant
moved to quash service and dismiss the amended motion for
judgment because the plaintiff failed to comply with Rule
1:8. Id., 431 S.E.2d at 302. Even though he had filed
responsive pleadings to the amended motion, the defendant
argued that the amended motion, nevertheless, had no legal
efficacy. Id. The trial court agreed and granted the
defendant’s motion to dismiss. Id. We affirmed that
judgment. Id. at 123, 431 S.E.2d at 302. Based on the
2
We utilized the term “motion for judgment” in
Mechtensimer since the case was decided 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” in the clerk’s
office. Rules 3:1 and 3:2.
5
plain language of Rule 1:8, we held “that [the plaintiff’s]
amended motion was without legal efficacy because [the
plaintiff] failed to obtain leave of court to amend his
original motion for judgment. Thus, the [trial] court did
not acquire jurisdiction to adjudicate any causes of action
alleged in the amended motion.” Id. at 122-23, 431 S.E.2d
at 302. The fact that the defendant had filed responsive
pleadings did not confer jurisdiction upon the trial court.
Id. at 123, 431 S.E.2d at 302.
Even though Mechtensimer, unlike the case before us,
did not involve an issue of the statute of limitations, its
rationale is controlling and answers the question as to the
operative filing date of Ahari’s amended complaint. Until
July 28, 2006, when the circuit court granted Ahari’s
motion for leave to amend, the amended complaint had no
legal efficacy. See Mechtensimer, 246 Va. at 122-23, 431
S.E.2d at 302; Harrell v. Harrell, 272 Va. 652, 657, 636
S.E.2d 391, 394-95 (2006) (holding that plaintiff’s amended
complaint “was properly dismissed for failing to comply
with the requirements of Rule 1:8 to obtain leave of court
before filing” and that any request for relief contained in
the amended complaint was rendered a nullity by the
dismissal); Bowie v. Murphy, 271 Va. 126, 132 n.4, 137, 624
S.E.2d 74, 78 n.4, 80 (2006) (holding that claims asserted
6
in an amended motion for judgment that exceeded the scope
of the trial court’s leave to amend were not properly
asserted and were therefore barred). Only at that time was
the amended complaint deemed filed, thereby adding the new
party defendants and commencing the action as to them.3 See
Mendenhall v. Cooper, 239 Va. 71, 76, 387 S.E.2d 468, 471
(1990) (“[I]t is well-established that when ‘a new party is
brought into a suit by an amended pleading, the suit must
be deemed to have been commenced as to him at the time that
he was so brought in.’”) (quoting Webb v. United States
Fidelity & Guar. Co., 165 Va. 388, 393, 182 S.E. 557, 559
(1935)). Thus, until the circuit court granted leave for
Ahari to amend her complaint, the statute of limitations
continued to run with regard to the cause of action
asserted against the new defendants. See Neff v. Garrard,
216 Va. 496, 498, 219 S.E.2d 878, 879 (1975) (holding that
when an amended pleading asserts a new cause of action or
makes a new demand, the statute of limitations continues to
run until the date of the amendment). And, on the
operative filing date of the amended complaint, July 28,
2006, the statute of limitations had expired by more than
two months. The circuit court therefore did not err by
3
No question is raised in this appeal regarding the
provisions of Code § 8.01-6 that address “[a]n amendment
7
granting the defendants’ plea of the statute of
limitations.4
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
changing the party against whom a claim is asserted[.]”
4
We are not persuaded otherwise by the numerous cases
from other jurisdictions cited by Ahari.
8