Idoux v. Estate of Helou

Present:   Hassell, C.J., Keenan, * Koontz, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

THOMAS IDOUX

v.   Record No. 090674                 OPINION BY
                      CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR.
ESTATE OF RAJA ALEXANDER HELOU       April 15, 2010

            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Dennis J. Smith, Judge

                               I.

      The primary issue that we consider in this appeal is

whether Code § 8.01-6.2(B) permits a plaintiff, who filed a

warrant in debt against an estate, to file a subsequent action

to add the proper defendant after the statute of limitations

had expired.

                               II.

      Thomas A. Idoux filed a warrant in debt pro se, alleging

negligence against Raja A. Helou in the Fairfax County General

District Court resulting from an automobile accident that

allegedly occurred on September 19, 2006.   On March 29, 2007,

before Idoux filed his warrant in debt, Helou died from causes

unrelated to the alleged acts of negligence.   The decedent’s

wife, Rosemary L. Helou, qualified as the personal

representative of the Estate of Raja Alexander Helou (the

Estate) on October 15, 2007.

      *
       Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
     The general district court dismissed the warrant in debt

without prejudice on November 20, 2007, because Idoux had

improperly identified a deceased defendant.    Idoux did not

appeal the warrant in debt judgment.

     On September 2, 2008, Idoux filed the present negligence

action in the circuit court and identified the defendant as the

“Estate of Raja Alexander Helou.”     On November 17, 2008, Idoux

served the personal representative of the Estate with the

complaint, after the relevant statute of limitations had

expired.   The Estate filed a plea in bar asserting that the

Estate could not be a proper party to this action, that the

complaint could not be amended to substitute the personal

representative for the Estate, and that the applicable statute

of limitations had expired.   The circuit court agreed with the

Estate and entered a judgment sustaining the plea in bar.

Idoux appeals.

                              III.

                               A.

     Code § 8.01-6.2(B) states:

     “In the event that suit is filed against the
     estate of a decedent, and filed within the
     applicable statute of limitations, naming the
     proper name of estate of the deceased and service
     is effected or attempted on an individual or
     individuals as executor, administrator or other
     officers of the estate, such filing tolls the
     statute of limitations for said claim in the
     event the executor, administrator or other
     officers of the estate are unable to legally

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     receive service at the time service was
     attempted, or defend suit because their authority
     as executor, administrator or other officer of
     the estate excludes defending said actions, or
     their duties as executor, administrator or other
     officer of the estate had expired at the time of
     service or during the time of defending said
     action.”

(Emphasis added.)

     Idoux, relying upon the above-emphasized portion of Code

§ 8.01-6.2(B), asserts that the statute of limitations was

tolled when he mistakenly filed his action against the Estate.

Idoux further asserts that he was entitled to amend his action

to include the personal representative of the Estate, who would

have been a proper party.   Continuing, Idoux contends that Code

§ 8.01-6.2(B), contrary to this Court’s holding in Swann v.

Marks, 252 Va. 181, 476 S.E.2d 170 (1996), permits him to amend

the complaint by substituting the personal representative for

the Estate.   We disagree with Idoux’s contentions.

     We have consistently and repeatedly stated the principles

of statutory construction that we apply when a statute is clear

and unambiguous:

          “ ‘While in the construction of statutes the
     constant endeavor of the courts is to ascertain
     and give effect to the intention of the
     legislature, that intention must be gathered from
     the words used, unless a literal construction
     would involve a manifest absurdity. [When] the
     legislature has used words of a plain and
     definite import the courts cannot put upon them a
     construction which amounts to holding the
     legislature did not mean what it has actually
     expressed.’ ”

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Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172

S.E. 445, 447 (1934)); accord Dodge v. Randolph-Macon Woman’s

College, 276 Va. 10, 15, 661 S.E.2d 805, 808 (2008); Davis v.

Tazewell Place Assocs., 254 Va. 257, 260-61, 492 S.E.2d 162,

164 (1997); Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528,

530 (1997).    We have also stated that “[i]n construing a

statute, we must apply its plain meaning, and ‘we are not free

to add [to] language, nor to ignore language, contained in

statutes.’ ”    BBF, Inc. v. Alstom Power, Inc., 274 Va. 326,

331, 645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp. v. Keane

Federal Systems, Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257

(2003)).

     Applying the above-referenced principles, we reject

Idoux’s contention that Code § 8.01-6.2(B) tolled the

applicable statute of limitations and allowed him to amend his

action to include the personal representative of the Estate as

a party to his action.   Idoux admits, in his brief, that he

mistakenly filed suit against the Estate, rather than against

the personal representative of the Estate.   This Court held in

Swann, 252 Va. at 184, 476 S.E.2d at 171-72 that: “To toll the

statute of limitations, a suit must be filed against a proper

party.   Virginia statutes do not authorize an action against an



                                 4
‘estate.’ . . . . A [complaint] against an ‘estate’ is a

nullity and cannot toll the statute of limitations.”

     Applying the plain meaning of Code § 8.01-6.2(B), Idoux’s

pleading against the Estate did not toll the statute of

limitations.   Code § 8.01-6.2(B) contains three exceptions that

permit the tolling of the statute of limitations in the event

that a proceeding is filed against the estate of a decedent

within the applicable statute of limitations.   The only

statutory exception that the litigants discuss in this appeal

is whether “such filing tolls the statute of limitations for

[a] claim in the event the executor, administrator or other

officers of the estate are unable to legally receive service at

the time service was attempted.”    Code § 8.01-6.2(B).   The

litigants do not discuss the remaining exceptions in Code

§ 8.01-6.2(B).

     Code § 8.01-6.2(B) does not apply to Idoux because nothing

in the record before this Court suggests that the personal

representative of the Estate, who had been appointed before the

expiration of the statute of limitations, was unable to legally

receive service, had service been attempted before the

expiration of the statute of limitations.   The fact that the

complaint against the Estate was a nullity did not render the

Estate’s personal representative unable to receive service of

process of that invalid complaint.


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     We note that acceptance of Idoux’s position would

completely eviscerate the purpose of Code § 8.01-6.2(B) because

the logical conclusion of his argument is that the other

tolling provisions in Code § 8.01-6.2(B) are either meaningless

or surplusage.   “Every part of a statute is presumed to have

some effect and no part will be treated as meaningless unless

absolutely necessary.”   Sims Wholesale Co. v. Brown-Forman

Corp., 251 Va. 398, 405, 468 S.E.2d 905, 909 (1996); see also

Raven Red Ash Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E.

541, 542 (1929).   And, as we have already stated, this Court is

not free to ignore statutory language or render such language

meaningless.

     Additionally, we observe that pursuant to Code § 8.01-

6.2(B), a filing may toll the statute of limitations for a

“claim in the event the executor, administrator or other

officers of the estate are unable to legally receive service at

the time service was attempted.”     The phrase “at the time

service was attempted” is temporal, and Idoux has failed to

show that the personal representative of the Estate, who had

been appointed before the expiration of the statute of

limitations, was unable to legally receive service, had service

been attempted before the expiration of the statute of

limitations.   Code § 8.01-6.2(B).   Indeed, the record is devoid




                                6
of any evidence that an attempt was made to serve the

administrator before the statute of limitations expired.

     Idoux devotes a significant portion of his brief to

asserting that a personal representative cannot legally receive

service for an estate when the plaintiff names the estate

instead of the personal representative of the estate as the

defendant.   He cites no authority for this proposition.   Mrs.

Helou qualified as personal representative for the Estate of

Raja Alexander Helou on October 15, 2007, almost a year before

the complaint was filed.   Since her appointment, she had full

authority to accept service of and defend lawsuits.     See Code

§ 8.01-229(B)(2)(b).

     We observed in James v. Peyton, 277 Va. 443, 453 n.3, 674

S.E.2d 864, 868 n.3 (2009) that the statutory language at issue

in this case in Code § 8.01-6.2(B) does not apply when an

executor, administrator, personal representative, or other

officer of an estate was legally able to receive service of the

action filed with the proper name.   Our observation regarding

the effect of Code § 8.01-6.2(B) in James v. Peyton, supra, is

equally applicable here, and we adopt that statement as our

holding in this case.

                               B.

     Relying upon Code § 8.01-229(B)(2), Idoux asserts that he

was entitled to amend his lawsuit to include the personal


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representative as a party defendant and that his complaint

could be amended within two years of its filing if the

complaint was filed within the statute of limitations.

Additionally, Idoux argues that the filing of his pleading

against the Estate was sufficient to invoke the protection of

Code § 8.01-229(B)(2) and that he should be allowed to amend

his complaint because his motion to amend was filed within two

years after he filed the warrant in debt pro se in the general

district court.   Idoux’s arguments are without merit.

     Code § 8.01-229(B)(2) states in relevant part:

     “If a person against whom a personal action may
     be brought dies before the commencement of such
     action and before the expiration of the
     limitation period for commencement thereof then a
     claim may be filed against the decedent’s estate
     or an action may be commenced against the
     decedent’s personal representative before the
     expiration of the applicable limitation period or
     within one year after the qualification of such
     personal representative, whichever occurs later.

     We discussed Code § 8.01-229(B)(2) in Swann v. Marks,

supra.   We stated:

     “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

                                8
     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). A [complaint] against an
     ‘estate’ is a nullity and cannot toll the statute
     of limitations.”

252 Va. at 184, 476 S.E.2d at 171-72 (footnote omitted).

     We recently explained in James v. Peyton, supra:

          “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. 597-98 (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, 273 Va. at 24, 639
     S.E.2d at 181.”

277 Va. at 450-51, 674 S.E.2d at 867.

     Idoux’s general district court warrant in debt was not

amended, but rather it was dismissed.   Pursuant to Code § 8.01-


                               9
229(B)(2), Idoux may have filed an action against the personal

representative before the expiration of the statute of

limitations or within one year after qualification of the

personal representative, whichever occurred later.     Neither of

these events occurred.

     We also held in James that Code § 8.01-229(B)(2)(b) did

not alter the long-standing rule that a complaint must express

“the identity of the party the plaintiff intends to name as the

defendant and upon what basis the party is liable to the

plaintiff.”   277 Va. at 451, 674 S.E.2d at 867.   We hold that

Idoux’s arguments are without merit because as we have already

stated, Virginia statutes do not authorize an action against an

estate.

     Idoux has admitted that the Estate is not a proper

defendant to this proceeding and that he should have filed suit

against the personal representative of the Estate.     Code

§§ 8.01-229(B)(1) and (B)(2) do not apply because they direct

the decedent’s personal representative to file personal actions

which the decedent may have been entitled to bring and to

defend personal actions that could have been filed against the

decedent.   Code § 8.01-229(B)(2) did not change our

jurisprudence that a complaint must contain the identity of the

proper party who may be liable to the plaintiff, in this




                               10
instance the personal representative and not the Estate.   See

Swann, 252 Va. at 184, 476 S.E.2d at 171-72.

                              IV.

     For the foregoing reasons, and finding Idoux’s remaining

arguments meritless, we will affirm the judgment of the circuit

court.

                                                      Affirmed.




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