Harmon v. Sadjadi

PRESENT: All the Justices

DOROTHY HARMON, ADMINISTRATRIX
OF THE ESTATE OF JAMES HENRY HARMON,
DECEASED OPINION BY
JUSTICE G. STEVEN AGEE
v. Record Number 060704 January 12, 2007

PARVIZ M. SADJADI, M.D., ET AL.

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Malfourd W. Trumbo, Judge

Dorothy L. Harmon (“Harmon”), the personal representative

of James Henry Harmon’s (“James”) estate, appeals the judgment

of the trial court, which dismissed with prejudice her motion

for judgment seeking redress for an alleged personal injury

suffered by James. At issue in this case is whether the trial

court erred in finding Harmon’s action was barred by the statute

of limitations because it was filed after the one-year period

afforded by Code § 8.01-229(B)(1) expired. For the reasons set

forth below, we will reverse the judgment of the trial court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Parviz M. Sadjadi, M.D., is a physician licensed to

practice medicine in the Commonwealth. On June 6, 2001, Dr.

Sadjadi performed surgery on James at Alleghany Regional

Hospital.1 It was alleged that during the surgery, Dr. Sadjadi

1
HCA The Healthcare Company d/b/a Alleghany Regional
Hospital is a Tennessee corporation and Columbia/Alleghany
Regional Hospital, Inc. d/b/a Alleghany Regional Hospital is a
Virginia corporation. Both corporations are licensed to conduct
and surgical support personnel “lost, left or caused to be left

in [James’] body a foreign material consisting of a large

laparotomy pad or sponge and closed the incision leaving this

foreign material in the decedent’s abdominal cavity.” Following

the surgery, James “became increasingly weak and sick, and

suffered severe abdominal pain and dehydration.” Five months

after the surgery, James was readmitted to Alleghany Regional

Hospital for further care and testing. Shortly thereafter, a CT

scan identified the laparotomy sponge and, on November 8, 2001,

Dr. Sadjadi performed surgery to remove the sponge. Prior to

his death on May 1, 2003, James had not filed any legal

proceeding arising from these events. James was a resident of

West Virginia.

On July 18, 2003, Harmon, as James’ surviving spouse,

qualified as his personal representative in West Virginia. On

October 29, 2003, she filed a motion for judgment in her

capacity as James’ personal representative in the Circuit Court

of Alleghany County (“October 2003 motion for judgment”),

although Harmon had not qualified as James’ personal

representative in Virginia. That action was nonsuited on

September 28, 2004.

business in Virginia. They and Dr. Sadjadi will be referred to
collectively as “the Defendants.”

2
 On January 13, 2004, administration of James’ estate

in West Virginia closed, and Harmon was discharged as

James’ personal representative. On December 6, 2004,

Harmon qualified as James’ personal representative in

Virginia in the clerk’s office of the trial court. On

March 24, 2005, Harmon, as personal representative, filed

the motion for judgment in the case at bar (“March 2005

motion for judgment”). Like the October 2003 motion for

judgment, the March 2005 motion for judgment alleged the

Defendants were “negligent in their care of [James]” during

the first surgery and post-surgery treatment and diagnosis

of James’ continued complaints. The Defendants filed,

inter alia, a special plea of the statute of limitations

contending Harmon’s claims were barred by the statute of

limitations under Code § 8.01-229(B)(1).2

In a January 9, 2006 order, the trial court granted the

Defendants’ plea in bar and dismissed the case with prejudice.

2
While James died after the malpractice and personal injury
allegedly caused by the Defendants, it is important to note that
the present suit is not a wrongful death action – it is,
instead, a personal injury action for damages allegedly
sustained by James prior to his death from other causes. This
distinction is important because the tolling provisions of Code
§ 8.01-229 are inapplicable in wrongful death actions, having
been superseded by Code § 8.01-244. Horn v. Abernathy, 231 Va.
228, 237-38, 343 S.E.2d 318, 323-24 (1986); see Dodson v.
Potomac Mack Sales & Service, Inc., 241 Va. 89, 93-95, 400
S.E.2d 178, 180-81 (1991) (superseded as to nonsuit tolling
provisions only by Acts 1991 ch. 722).

3
In a letter opinion incorporated by reference into the order,

the trial court relied on McDaniel v. North Carolina Pulp Co.,

198 Va. 612, 95 S.E.2d 201 (1956), and Fowler v. Winchester Med.

Ctr., 266 Va. 131, 580 S.E.2d 816 (2003), to rule that the July

18, 2003 West Virginia qualification was the relevant date for

determining whether Harmon’s suit was barred by Code § 8.01-

229(B)(1). The trial court determined that the one-year period

within which to file under Code § 8.01-229(B)(1) began to run on

July 18, 2003, but the filing of the October 2003 motion for

judgment tolled the running of that time period. However, the

trial court then held that the tolling ceased when James’ estate

in West Virginia was closed on January 13, 2004 and Harmon’s

status as James’ personal representative terminated on that

date. The trial court concluded that

[e]ven considering the tolling of the statute of
limitations during the pendency of the first suit
while [Harmon] was qualified as decedent’s personal
representative in West Virginia, the present action
was filed more than a year after [Harmon’s]
qualification as the administrator of her husband’s
estate in West Virginia and therefore is dismissed as
barred by the statute of limitations.

We awarded Harmon this appeal.

II. ANALYSIS

4
 Harmon argues the March 2005 motion for judgment is timely

for two reasons.3 First, she asserts the motion for judgment was

timely under Code § 8.01-229(B)(1)4 because it was filed within

one year of her December 6, 2004 qualification as James’

personal representative in Virginia. Alternatively, Harmon

avers that Code §§ 8.01-229(B)(1) and –229(B)(6), when read

together, permit a personal representative to file suit up to

three years after the decedent’s death.

Harmon asserts the term “qualification” as used in Code

§ 8.01-229(B)(1) necessarily refers to the qualification of a

personal representative in Virginia because an individual who is

3
On brief, Harmon raises a third argument supporting the
timeliness of the March 2005 motion for judgment based on Code
§ 8.01-229(E)(3). However, our review of the record shows
Harmon failed to make this argument at trial, and we will not
consider it for the first time on appeal. Rule 5:25; Faulknier
v. Shafer, 264 Va. 210, 218 n.6, 563 S.E.2d 755, 760 n.6 (2002).
4
Code § 8.01-229(B)(1) states:
If a person entitled to bring a personal action dies
with no such action pending before the expiration of
the limitation period for commencement thereof, then
an action may be commenced by the decedent’s personal
representative before the expiration of the limitation
period including the limitation period as provided by
subdivision E 3 or within one year after his
qualification as personal representative, whichever
occurs later.
Neither party asserts the March 2005 motion for judgment was
timely under the original two-year statute of limitations period
in Code § 8.01-243(A) and (C) within which James could have
personally brought a cause of action against the Defendants.
Instead, the case focuses on the provision of Code § 8.01-
229(B)(1) permitting a cause of action to be filed within one
year of the qualification of a decedent’s personal
representative.

5
only qualified in a foreign jurisdiction “is not a proper party

to sue or be sued in Virginia.” Based on that reading of Code

§ 8.01-229(B)(1), Harmon maintains the March 2005 motion for

judgment was timely because it was filed within one year of her

December 6, 2004 qualification as James’ personal representative

in Virginia.

Harmon contends further that even if Code § 8.01-229(B)(1)

refers to qualification outside Virginia, her March 2005 motion

for judgment was timely because the running of the statutory

period was tolled during the pendency of the suit commenced by

the October 2003 motion for judgment. She contends McDaniel

“stands for the proposition that a personal representative

qualified in a foreign jurisdiction who sues in Virginia prior

to qualification in Virginia, tolls the statute of limitation

during the pendency of the suit filed before his or her

qualification in Virginia.” Anticipating the Defendants’

argument based on Fowler, Harmon distinguishes that case because

“[a]t the time Fowler filed the Virginia suit, she was not

qualified [as the decedent’s personal representative] in any

jurisdiction.” By contrast, Harmon notes that she was qualified

as James’ personal representative in West Virginia when she

filed the October 2003 motion for judgment.

Harmon thus asserts as a consequence that the one-year

period under Code § 8.01-229(B)(1) began running on July 18,

6
2003, when she qualified as James’ personal representative in

West Virginia. After running for three months and ten days, the

statute of limitations was tolled once she filed the October

2003 motion for judgment and remained tolled until September 28,

2004, when that cause of action was nonsuited. The statutory

period then ran from September 28, 2004 until the March 2005

motion for judgment was filed, a period of just under six

months. Harmon thus contends the statutory period ran for just

over nine months by the time the March 2005 motion for judgment

was filed, making it timely within the one-year period under

Code § 8.01-229(B)(1).

Harmon’s second argument supporting the timeliness of the

March 2005 motion for judgment is that Code §§ 8.01-229(B)(1)

and -229(B)(6),5 when read together, give a personal

representative “up to three years after the death of the

decedent to file suit.” Harmon cites “the legal logic, . . .

not the facts” of Douglas v. Chesterfield County Police Dept.,

251 Va. 363, 467 S.E.2d 474 (1996), in which the Court explained

that the interplay of Code §§ 8.01-229(B)(1) and -229(B)(6)

5
Code § 8.01-229(B)(6) states:
If there is an interval of more than two years between
the death of any person in whose favor or against whom
a cause of action has accrued or shall subsequently
accrue and the qualification of such person’s personal
representative, such personal representative shall,
for the purposes of this chapter, be deemed to have
qualified on the last day of such two-year period.

7
fixes “an outer time limit of three years” for the filing of a

cause of action by a qualified personal representative. Id. at

367, 467 S.E.2d at 476. Harmon contends that under these

statutes she had until May 1, 2006 – three years after James’

death – to file the cause of action, so her March 2005 motion

for judgment was timely.

The Defendants respond that Harmon’s proposed

interpretation, limiting the term “qualification” in Code

§ 8.01-229(B)(1) to qualification in Virginia “ignore[s] the

clear and unambiguous language of the statute” by giving it a

“more narrow meaning than there exists in the statutory text.”

They contend “qualification” in Code § 8.01-229(B)(1) is “not

limited in scope or restricted to qualification in a particular

state,” and it would be improper for the judiciary to add such a

limitation. Moreover, they allege because “foreign

qualification can toll the statute of limitations in Virginia

[under McDaniel, it should] also be sufficient to trigger the

one-year statute of limitations” under Code § 8.01-229(B)(1).

The Defendants thus claim the July 18, 2003 West Virginia

qualification is the proper date for determining whether the

March 2005 motion for judgment was timely. They agree that

under McDaniel the statutory period was tolled when Harmon filed

the October 2003 motion for judgment. However, they maintain

once Harmon “was discharged as the executrix in West Virginia

8
[on January 13, 2004], the statute of limitations was no longer

tolled.” This is so, they assert, because the Court in Fowler

recognized that an individual who is not a qualified personal

representative “could not obtain the benefit of the tolling of

the statute of limitations during the pendency of a suit filed

in Virginia.” The Defendants argue that Harmon thus lost the

benefit of the tolling once she was discharged as James’

qualified personal representative. Therefore, the Defendants

conclude that the statutory period was only tolled for 76 days

(from the filing of the October 2003 motion for judgment to the

closure of the West Virginia estate on January 13, 2004), and

thus that, counting from Harmon’s July 18, 2003 West Virginia

qualification, the March 2005 motion for judgment was not timely

under Code § 8.01-229(B)(1). In other words, they contend the

combined time period from July 18, 2003 to October 29, 2003, and

January 13, 2004 to March 24, 2005 (seventeen months and twenty-

two days) exceeds the one-year statutory period within which

Code § 8.01-229(B)(1) required suit to be brought.

The Defendants counter Harmon’s second argument by

asserting that Code § 8.01-229(B)(6) is inapplicable based on

the plain language of the statute. They contend Code § 8.01-

229(B)(6) only applies when a personal representative qualifies

more than two years after the decedent’s death, whereas Harmon

9
qualified as James’ personal representative in both West

Virginia and Virginia less than two years after his death.

This case presents a pure question of law, which we review

de novo. Sheets v. Castle, 263 Va. 407, 410, 559 S.E.2d 616,

618 (2002). As an initial matter, Harmon’s argument based on

the interplay of Code §§ 8.01-229(B)(1) and –229(B)(6) fails

because Code § 8.01-229(B)(6) does not apply in this case. The

plain language of Code § 8.01-229(B)(6) addresses situations

when “there is an interval of more than two years between the

death of any person in whose favor or against whom a cause of

action has accrued or shall subsequently accrue and the

qualification of such person’s personal representative.”

(Emphasis added.) Similarly, this Court’s analysis in Douglas

referred to the interplay of Code §§ 8.01-229(B)(1) and –

229(B)(6) where the facts of the case implicated the provisions

of both statutes. 251 Va. at 365-67, 467 S.E.2d at 475-76.

Harmon’s qualifications in West Virginia and Virginia both

occurred less than two years after James’ death. Accordingly,

Code § 8.01-229(B)(6) is inapplicable by its plain terms.

Turning to the application of Code § 8.01-229(B)(1), we

note the trial court’s judgment in this case was based on our

decisions in McDaniel and Fowler. In McDaniel, the individuals

qualified as the decedent’s personal representative in Virginia

filed a wrongful death action in Virginia that the defendants

10
claimed was barred by the statute of limitations. The plaintiff

contended that suit was timely because the statute of

limitations had been tolled during the pendency of a previous

suit alleging the same cause of action, which had been filed in

Virginia by one of the same individuals when he was only

qualified as the decedent’s personal representative in Nevada.

198 Va. at 613-14, 95 S.E.2d at 202-03. The Court in McDaniel

held that under these circumstances the statute of limitations

was tolled during the pendency of an action filed by a personal

representative who is qualified in a foreign jurisdiction, but

not qualified in Virginia, because “the real party in interest

remained the same.” Id. at 619-20, 95 S.E.2d at 206-07.

Citing McDaniel, the trial court determined that the one-

year period under Code § 8.01-229(B)(1) began to run when Harmon

qualified as James’ personal representative in West Virginia on

July 18, 2003. By implication, the trial court read

“qualification” under Code § 8.01-229(B)(1) as inclusive of

qualification in any jurisdiction. The trial court then

determined, also relying on McDaniel, that the filing of the

October 2003 motion for judgment tolled the statutory period.

However, once Harmon’s qualification in West Virginia terminated

on January 13, 2004, the trial court reasoned that any tolling

ceased, based on our decision in Fowler, because Harmon was then

without authority as a personal representative in any

11
jurisdiction. As a result, the trial court concluded that by

the time Harmon qualified in Virginia and filed the March 2005

motion for judgment more than one year had elapsed since her

2003 qualification in West Virginia. Thus, the trial court

ruled Code § 8.01-229(B)(1) barred the March 2005 motion for

judgment as untimely.

Resolution of the case at bar has caused us to re-examine

the foundation of our holding in McDaniel. In doing so, we have

concluded that our decision in McDaniel mistakenly deviated from

the application of the doctrine of standing and was a flagrant

error. Accordingly, we will overrule our decision in McDaniel

for the reasons set forth below.

Our jurisprudence is clear that when a party without

standing brings a legal action, the action so instituted is, in

effect, a legal nullity. In Chesapeake House on the Bay, Inc.

v. Virginia National Bank, 231 Va. 440, 344 S.E.2d 913 (1986),

we addressed the lack of standing by an initial plaintiff who

attempted to cure the legal nullity of its pleading by

substituting a party with standing. We unequivocally held that

“a new plaintiff may not be substituted for an original

plaintiff who lacked standing to bring the suit.” Id. at 442-

43, 344 S.E.2d at 915; see also Bardach Iron and Steel Co. v.

Tenenbaum, 136 Va. 163, 173-74, 118 S.E. 502, 505 (1923). When

a plaintiff lacks standing, “the sole remedy is a nonsuit

12
followed by a new action brought in the name of a proper

plaintiff.” Chesapeake House, 231 Va. at 443, 344 S.E.2d at 915

(citing Tenenbaum, 136 Va. at 173, 118 S.E. at 505).

In Harbour Gate Owners’ Ass’n v. Berg, 232 Va. 98, 348

S.E.2d 252 (1986), we determined that an initial motion for

judgment filed by a plaintiff who lacked standing to bring that

action was of no legal effect as to the statute of limitations

applicable to a second action brought by a plaintiff with

standing. Id. at 107, 348 S.E.2d at 358. The “original motion

for judgment did nothing to toll the running of the statute of

limitations” as to the second suit brought by subsequent

plaintiffs with standing. Id.

In McDaniel, we acknowledged that the Nevada executor had

no standing to bring the first motion for judgment filed in

Virginia since he was without legal authority to act in

Virginia. “[I]t has been established in this jurisdiction that

a foreign administrator, who has acquired no status in Virginia,

is without authority to institute in his official capacity any

action or suit in the courts of this State.” 198 Va. at 615, 95

S.E.2d at 204 (citing Moore v. Smith, 177 Va. 621, 624, 15

S.E.2d 48, 48 (1941) and Fugate v. Moore, 86 Va. 1045, 1047, 11

S.E. 1063, 1063 (1890)). That determination should have ended

the decisional process in McDaniel because the Nevada executor’s

initial motion for judgment, since he lacked standing to bring

13
the action, was a nullity with no legal effect. As this Court

acknowledged in McDaniel, a judgment for the foreign personal

representative in the first suit would have been reversible

error because “[t]hat rule is not in question here.” Id.

(noting the first suit that had been brought solely by the

Nevada executor had been dismissed for failure to be brought by

an individual qualified in Virginia); e.g., Smith, 177 Va. at

624, 15 S.E.2d at 48 (Tennessee administrator not qualified in

Virginia was without authority to institute suit in Virginia).

In McDaniel, this Court nonetheless ignored the Nevada

personal representative’s lack of standing and the invalidity of

the first motion for judgment. Citing the decision of the West

Virginia Supreme Court in Siever v. Klots Throwing Co., 132 S.E.

882 (W. Va. 1926), this Court adopted the premise that the

plaintiffs in the two actions (the Nevada personal

representative in the first suit and the Virginia personal

representative in the second) were substantially the same

parties:

McDaniel, Jr., and Mary M. Persinger, personal
representatives of the deceased, as plaintiffs in the
second action, were substantially the same plaintiff
as the plaintiff in the first action, suing in the
same right. Only the name of a co-plaintiff was added
in the second action. Whatever the name of the
plaintiff, the real party in interest remained the
same; the suit was instituted in the same right; and
the cause of action was the same.

McDaniel, 198 Va. at 617, 619, 95 S.E.2d at 205-06.

14
 Citing Norwood v. Buffey, 196 Va. 1051, 86 S.E.2d 809

(1955), this Court then concluded that since the first action

had not been adjudicated on the merits, the ameliorative purpose

of former Code § 8-634 (now Code § 8.01-244) augured for

granting a status to the otherwise defective first action for

the purposes of tolling the statute of limitations. 198 Va. at

619-20, 95 S.E.2d at 206-07. In other words, since this Court

deemed the first and second plaintiffs to be, in effect, the

same party in interest, and since the first suit was “dismissed

without determining the merits of such action,” the Court deemed

tolling to have occurred when the first suit was filed. The

Court reached this conclusion even though no Virginia case had

given effect to a prior proceeding that was a legal nullity

because the plaintiff lacked standing to bring the proceeding.

Since rendering the McDaniel opinion in 1956, we have not

examined or applied McDaniel in any case when lack of standing

has been dispositive of the case. We have, however, confirmed

on many occasions since McDaniel that no legal effect is

accorded an action filed by a party without standing. E.g.,

Braddock, L.C. v. Board of Supervisors, 268 Va. 420, 425-26, 601

S.E.2d 552, 554-55 (2004) (action brought by party lacking

standing was a “nullity” that could not be resurrected by adding

parties with standing); Cook v. Radford Community Hosp., Inc.,

15
260 Va. 443, 451, 536 S.E.2d 906, 910 (2000) (Rule 1:8 “has

always been subject to the limitation that a new plaintiff may

not be substituted for an original plaintiff who lacked standing

to bring the suit. Statutes relating to misjoinder and

nonjoinder are not applicable in such situations, and the sole

remedy is a nonsuit followed by a new action brought in the name

of a proper plaintiff.”); Wells v. Lorcom House Condominiums’

Council of Co-Owners, 237 Va. 247, 253-54, 377 S.E.2d 381, 385

(1989) (“[T]he substance of the effort to file the amended

motion was to substitute new parties plaintiff, who would have

standing to maintain the action, in lieu of a plaintiff [who]

lacked standing. Such a substitution amounts to the assertion

of a new cause of action and an order permitting such

substitution constitutes reversible error.”).

The closest case to rely on the tolling effect of McDaniel

is Scott v. Nance, 202 Va. 355, 117 S.E.2d 279 (1960), which is

substantially distinguishable. In Scott, a plaintiff with clear

legal standing filed a motion for judgment against a defendant

who was a convicted felon and currently incarcerated. The

motion for judgment was brought directly against the convict and

did not name his committee as otherwise required by then Code

§ 53-307 (current Code § 53.1-222). Upon Scott’s plea in

abatement that no action could be brought against him

individually while he was incarcerated, the trial court

16
dismissed the initial proceeding. A subsequent proceeding by

the same plaintiff was instituted against Scott personally

following his release from custody, but Scott argued the statute

of limitations had expired. The plaintiff contended that the

initial filing had tolled the statute of limitations during its

pendency. Id. at 356-57, 117 S.E.2d at 279-80.

Even though there was no issue as to the legal standing of

the plaintiff, this Court cited McDaniel by analogy to hold

Scott was the real party in interest in each of the
motions for judgment involved. . . .
We perceive no good reason why the principle
applied where a plaintiff is under disability as a
foreign administrator should not be applied where a
defendant is under a disability because of his
confinement in the penitentiary.

202 Va. at 359, 117 S.E.2d at 281-82. We thus concluded that

the first motion for judgment tolled the statute of limitations.

However, in Scott, the first suit was not a legal nullity due to

the plaintiff’s lack of standing, nor did the defendant raise

the issue of standing.

In Wackwitz v. Roy, 244 Va. 60, 418 S.E.2d 861 (1992), a

nonresident personal representative was awarded a judgment in a

wrongful death action even though she never qualified in

Virginia. However, the defendant failed to object to the

nonresident plaintiff’s lack of standing at trial and first

raised the issue on appeal.

17
 The defendant in Roy claimed the standing issue was one of

subject matter jurisdiction and could thus be raised at any

time. Citing Moore v. Smith, 177 Va. 621, 624, 15 S.E.2d 48, 48

(1941), in which “we said that a nonresident administrator is

‘without authority’ to institute an action in Virginia,” this

Court stated in Wackwitz that the opinion in Moore “deemed the

issue no longer to be jurisdictional.” 244 Va. at 63, 418

S.E.2d at 863. We then cited McDaniel only to show that case

“confirmed that an action brought by a non-resident

administrator is not void for want of jurisdiction.” Id. at 63-

64, 418 S.E.2d at 863-64. Accordingly, we applied Rule 5:25 to

the defendant’s claim on appeal, holding that the defendant

waived the plaintiff’s lack of standing on appeal by failing to

raise the issue at trial. Id. at 64, 418 S.E.2d at 864.

In Fowler, the plaintiff was not qualified as a personal

representative in any jurisdiction at the time she filed a

motion for judgment in a wrongful death action. Although we

acknowledged the plaintiff had no standing, we nonetheless

decided the case under McDaniel by noting that the plaintiff

could not be “ ‘substantially the same party’ as the plaintiff

in the first suit” because she was not qualified as a personal

representative anywhere. 266 Va. at 136, 580 S.E.2d at 818.

Lastly, we cited McDaniel in the recent case of Brake v.

Payne, 268 Va. 92, 597 S.E.2d 59 (2004). In that case, a

18
decedent’s parent, without qualification as a personal

representative in any state, filed suit for assault, battery,

and false imprisonment. Upon the defendant’s demurrer that the

decedent’s parent lacked standing to bring the action, a non-

suit was entered. Subsequently, a third party qualified as the

decedent’s personal representative in Virginia and brought a

second motion for judgment restating the original claims and

adding several others, including a claim under the wrongful

death statute. The defendant then argued that the second action

was time barred because the first action could not toll the

statute of limitations due to the fact that it was brought by a

party without standing and was therefore a legal nullity. Id.

at 95-97, 597 S.E.2d at 60-62.

We agreed with the defendant, citing our decisions in Berg

and Chesapeake House on the Bay, Inc. However, we also

distinguished McDaniel because the decedent’s parent could not

satisfy the real party in interest test due to the fact that she

“was not qualified as the personal representative of [the

decedent’s] estate in Virginia or any other state when she filed

the First Action. . . . Thus, she could not have filed a new

suit as a qualified personal representative and claimed that she

was ‘substantially the same party.’ ” Id. at 99, 597 S.E.2d at

63 (citing Fowler, 266 Va. at 136, 580 S.E.2d at 818).

19
 In summary, our citations to McDaniel since its issuance

reveal that we have not readdressed the issue raised in

McDaniel. More importantly, we have not relied on McDaniel as

the basis for a holding on the merits in any case that a

plaintiff without legal standing can nonetheless file a legal

action that has the effect of tolling the statute of

limitations.

As a decision issued by “a court of last resort . . . after

full deliberation upon the issue,” McDaniel is entitled to

respect under the doctrine of stare decisis unless it contains

“flagrant error or mistake.” Selected Risks Ins. Co. v. Dean,

233 Va. 260, 265, 355 S.E.2d 579, 581 (1987) (citing Kelly v.

Trehy, 133 Va. 160, 169, 112 S.E. 757, 760 (1922)). When such a

flagrant error or mistake is found,

[o]ur strong adherence to the doctrine of stare
decisis does not . . . compel us to perpetuate what we
believe to be an incorrect application of the law
. . . . Indeed, this Court’s obligation to reexamine
critically its precedent will enhance confidence in
the judiciary and strengthen the importance of stare
decisis in our jurisprudence. Although we have only
done so on rare occasions, we have not hesitated to
reexamine our precedent in proper cases and overrule
such precedent when warranted.

Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997).

The rule set forth in McDaniel is clearly a mistake and a

flagrant error that we will not perpetuate. We can discern no

basis to carve out an exception to our otherwise clear precedent

20
that lack of standing causes a party’s legal proceeding to be of

no legal effect. There is no statutory or policy basis to

accord foreign personal representatives not qualified in

Virginia an exception to the doctrine of standing that otherwise

applies to all other plaintiffs. Therefore, we are not bound by

stare decisis and consequently overrule our decision in

McDaniel.

Accordingly, Harmon, as a foreign personal representative

not qualified in Virginia, had no legal standing to file the

October 2003 motion for judgment. That motion for judgment had

no legal effect and, as a nullity, could not act to toll the

running of the statutory period applicable under Code § 8.01-

243. As a corollary, “qualification” under Code § 8.01-

229(B)(1) must be read to mean only qualification as a personal

representative in Virginia because only such a party can have

legal standing to bring an action in Virginia courts as

contemplated by Code § 8.01-229(B)(1). The General Assembly

could not have intended “qualification” to include foreign

qualification, as that would embrace persons with no legal

standing, and thus no right or capacity to commence a valid

action.

As a consequence, Harmon’s qualification in West Virginia

could not trigger the running of the one-year period under Code

§ 8.01-229(B)(1). Neither her qualification in West Virginia

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nor the filing of the October 2003 motion for judgment had any

legal effect in Virginia because both were a legal nullity as

relates to any Virginia legal action. The one-year statutory

period under Code § 8.01-229(B)(1) commenced upon Harmon’s

qualification as personal representative of James’ estate in

Virginia on December 4, 2004. The statute required the motion

for judgment be filed within one year of that date. As the

March 2005 motion for judgment was filed within one year of

December 4, 2004, that motion for judgment satisfied the time

requirements of Code § 8.01-229(B)(1). Accordingly, the March

2005 motion for judgment was timely filed and the trial court

erred in sustaining the Defendant’s plea of the statute of

limitations.

III. CONCLUSION

For the reasons set forth above, we will reverse the

judgment of the trial court and remand the case for further

proceedings.

Reversed and remanded.

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