Present: All the Justices
JAMES M. SWANN
v. Record No. 951761 OPINION BY JUSTICE ELIZABETH B. LACY
September 13, 1996
STEVEN L. MARKS, ESQ.,
PERSONAL REPRESENTATIVE, ETC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
In this personal injury action, we consider whether a motion
for judgment filed against the "estate" of a deceased person
tolls the statute of limitations, and whether substitution of the
personal representative for the "estate" is the correction of a
misnomer under Code § 8.01-6.
On March 29, 1990, James M. Swann was injured when the
automobile in which he was riding was involved in an accident
with another vehicle driven by William L. Wild, a resident of
Delaware. Wild died on January 18, 1991, from causes unrelated
to the accident. Swann learned of Wild's death in July 1992, and
on December 18, 1992, filed a motion for judgment against "Estate
1
of William L. Wild." Almost two years later, on October 5,
1994, Steven L. Marks qualified as the personal representative of
Wild's Estate.
On February 3, 1995, a number of events happened. In an ex
parte proceeding, Swann was allowed to amend his pleading and
substitute Steven L. Marks, personal representative of the estate
1
Swann had filed a motion for judgment on February 5, 1992,
naming William L. Wild as the defendant. No further action was
taken on that motion for judgment, and it is not involved in
this appeal.
of William L. Wild, for the named defendant "Estate of William L.
Wild." The trial court's order indicates that the substitution
was "to correct [a] misnomer" and that it related back to the
filing date of the original pleading pursuant to Code § 8.01-6.
Following the entry of this order, Swann asked for and was
granted a nonsuit. An hour later Swann refiled his motion for
judgment naming "Steven L. Marks, Esq., Personal Representative
of the Estate of William L. Wild and as Administrator C.T.A. of
This Estate" as the defendant.
Marks filed a special plea asserting that the refiled suit
was barred by the statute of limitations. Following a hearing
and further proceedings, the trial court granted Marks' plea and
dismissed Swann's motion for judgment. We awarded Swann an
appeal.
Swann argues that his action is not barred by the statute of
limitations because the filing of the motion for judgment against
the "Estate of William L. Wild" was timely and tolled the statute
of limitations; that the substitution of Marks was the correction
of a misnomer under Code § 8.01-6; that the nonsuit was properly
granted; and that the nonsuit order was a final judgment
precluding reconsideration of those issues in the refiled suit.
Swann's arguments are grounded on the proposition that a motion
for judgment against the "estate" of a deceased person is valid
and tolls the statute of limitations. Because this premise is
erroneous, we will affirm the judgment of the trial court.
The statute of limitations period for Swann's personal
injury action would have expired on March 29, 1992, two years
after the accident. Code § 8.01-229(B)(2)(a) provides, however,
that when a party against whom a personal action may be brought
dies before the suit is commenced, the suit will be considered
timely if it is filed "within one year after the qualification"
of the decedent's personal representative. The provisions of
§ 8.01-229(B)(6) in effect at the times relevant here, provided
that, if the personal representative qualified more than one year
after the death, the personal representative was "deemed to have
qualified on the last day" of the one year period extending the
limitations period. Applying these provisions to the facts of
this case, Marks is deemed to have qualified as personal
representative on January 18, 1992, and the limitations period
was extended until January 18, 1993. Thus, Swann's motion for
judgment pending on that date, the action against the "Estate of
William L. Wild," must qualify as a valid action to avoid the
statute of limitations bar.
Marks contends that suit against an "estate" is a nullity
and cannot toll the statute of limitations. We agree. To toll
the statute of limitations, a suit must be filed against a proper
party. Virginia statutes do not authorize an action against an
"estate." Code §§ 8.01-229(B)(1) and (B)(2) direct the
decedent's personal representative to file any personal action
which the decedent may have been entitled to bring and to defend
any personal action which could be brought against the decedent.
This limitation is further highlighted by the language of the
statute which allows claims to be filed against the property of
the estate, but provides that actions may only be filed against
the decedent's personal representative. Code §§ 8.01-229(B)(2)
and (B)(4). This statutory scheme is consistent with the
principle that "suits and actions must be prosecuted by and
against living parties." Rennolds v. Williams, 147 Va. 196, 198,
136 S.E. 597, 597 (1927). 2 A motion for judgment against an
"estate" is a nullity and cannot toll the statute of limitations.
Furthermore, the substitution of a personal representative
for the "estate" is not the correction of a misnomer. Misnomer
arises when the right person is incorrectly named, not where the
wrong defendant is named. Rockwell v. Allman, 211 Va. 560, 561,
179 S.E.2d 471, 472 (1971). The 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. Thus, one cannot be
substituted for another under the concept of correcting a
misnomer.
Swann also contends that the trial court erred because the
nonsuit order was a final order, and therefore the order allowing
substitution was not subject to modification in the refiled
action. To challenge the substitution order, Swann contends that
Marks was required to appeal the nonsuit order. A nonsuit order,
however, is ordinarily not considered a final judgment for
purposes of appeal. McManama v. Plunk, 250 Va. 27, 32, 458
2
Swann erroneously cites McManama v. Plunk, 250 Va. 27, 458
S.E.2d 759 (1995), for the proposition that a suit against a
dead person is not a nullity. In that case, the plaintiff's
suit was filed against a living person within the statute of
limitations period. Id. at 29, 458 S.E.2d at 760.
S.E.2d 759, 761 (1995). A nonsuit order is a final, appealable
order only when a dispute exists regarding the propriety of
granting the nonsuit. Id. Here, there is no dispute as to the
entry of the nonsuit order. The nonsuit order is not a final
judgment as to the substitution order and did not clothe the
substitution order with the force of res judicata. Thus, the
trial court's consideration of Marks' special plea of the statute
of limitations, including consideration of the substitution
order, was proper.
For the reasons expressed, we will affirm the judgment of
the trial court.
Affirmed.