Harmon v. Sadjadi, Record No. 060704.

• Decision Date: 12 January 2007
• Docket Number: Record No. 060704.
• Parties: Dorothy HARMON, Administratrix of the Estate of James Henry Harmon, Deceased v. Parviz M. SADJADI, M.D., et al.
• Court: Virginia Supreme Court

639 S.E.2d 294

Dorothy HARMON, Administratrix of the Estate of James Henry Harmon, Deceased v. Parviz M. SADJADI, M.D., et al.

Record No. 060704.

Supreme Court of Virginia.

January 12, 2007.

C. Eugene Compton, Lebanon (Charles M. Love, IV; Compton & Compton; The Masters Law Firm, on brief), for appellant.

Alan R. Siciliano, Lanham, MD; Ronald P. Herbert (Tracy Taylor Hague, Richmond; DeCaro, Doran, Siciliano, Gallagher & DeBlasis, Vienna; LeClair Ryan, on briefs), for appellees.

Present: All the Justices.

OPINION BY Justice G. STEVEN AGEE.

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 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.

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. 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

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 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, 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) 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 [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...