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
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‘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
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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-
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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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