Swann v. Marks, 951761
| Decision Date | 13 September 1996 |
| Docket Number | No. 951761,951761 |
| Citation | 252 Va. 181,476 S.E.2d 170 |
| Court | Virginia Supreme Court |
| Parties | James M. SWANN v. Steven L. MARKS, Esq., Personal Representative, etc. Record |
Rodney Sager, Kevin B. McCray (Kenneth F. Hardt, Sager & Associates, on briefs), Richmond, for appellant.
Dabney J. Carr, IV (Michael H. Gladstone, Mays & Valentine, on brief), Richmond, for appellee.
Present: All the Justices.
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 of William L. Wild." 1 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 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...
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Hampton v. Meyer
...words, a misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named. Swann v. Marks , 252 Va. 181, 184, 476 S.E.2d 170 (1996). Misjoinder, on the other hand, arises when "the person or entity identified by the pleading was not the person by or......
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Slater v. Skyhawk Transportation, Inc., Civil Action No. 97-1853 (D. N.J. 5/4/1999)
...has held that a "[m]isnomer arises when the right person is incorrectly named, not where the wrong defendant is named." Swann v. Marks, 476 S.E.2d 170, 171 (Va. 1996). As I have already determined, Slater has not incorrectly named the right party, but failed to add a new Finally, New Jersey......
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..."Misnomer arises when the right person is incorrectly named, not where the wrong defendant is named." See Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (citing Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971)). While the Plaintiff may thus not avail itself of ......
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Slater v. Skyhawk Transportation, Inc.
...has held that a "[m]isnomer arises when the right person is incorrectly named, not where the wrong defendant is named." Swann v. Marks, 476 S.E.2d 170, 171 (Va. 1996). As I have already determined, Slater has not incorrectly named the right party, but failed to add a new Finally, New Jersey......