THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam,
WILLIAM C. MIMS JUSTICE
appeal, the Court considers whether Sheryl Denise Ricketts
had standing to pursue a personal injury claim against
Charlie Edward Strange after filing a Chapter 7 bankruptcy
petition. The Court also considers whether the circuit court
erred by denying her motions to correct a misnomer in her
complaint or substitute the bankruptcy trustee as the proper
Background and Procedural History
February 3, 2012, Ricketts was involved in a motor vehicle
accident. She visited her primary care physician later that
day complaining of back and neck pain that was radiating into
her head and causing a "severe" headache. A
subsequent MRI revealed "a small posterior disc
protrusion at C7-T1." She received corticosteroid
injections, participated in physical therapy, and was treated
by a chiropractor. When these treatments proved unavailing,
she elected to undergo surgery.
January 16, 2014, shortly before the statute of limitations
expired, Ricketts filed a complaint in the circuit court
alleging that Strange's negligence was the direct and
proximate cause of the accident. Strange moved for summary
judgment on the ground that Ricketts lacked standing to
pursue her claim. He asserted that in September 2012,
Ricketts filed a Chapter 7 bankruptcy petition in the United
States Bankruptcy Court for the Western District of Virginia.
Strange argued that Ricketts's negligence claim was
"assertable only by the trustee in bankruptcy"
because she failed to properly exempt it from the bankruptcy
bankruptcy petition, Ricketts was required to list her
interests in personal property. 11 U.S.C. §
521(a)(1)(B)(i). Question 18 of Schedule B directed Ricketts
to identify any "liquidated debts owed to [her]
including tax refunds." Rickets responded as follows:
Potential funds due to Debtor unknown at this time, including
State & Federal tax refunds, 9/12 interest in joint 2012
tax refund of approximately $9700 = $7274, debtor 1/2
interes[t] = $3638, possible garnishment funds, insurance
proceeds, proceeds related to claims or causes of action that
may be asserted by the debtor, any claim for earned but
unpaid wages, and/or inheritance.
21 directed Ricketts to list "[o]ther contingent and
unliquidated claims of every nature, including tax refunds,
counterclaims of the debtor, and rights to setoff
claims." Ricketts marked, "None."
Schedule C, Ricketts was required to list the assets she
"claimed as exempt" from the bankruptcy estate. She
copied the assets listed under question 18 of Schedule B into
Schedule C and alleged that these assets were exempt under
Code § 34-4, Virginia's Homestead Exemption.
circuit court granted Strange's motion for summary
judgment. It concluded that because Ricketts "failed to
disclose [her claim against Strange] with the requisite
reasonable particularity under the circumstances, " it
"remained part of the . . . bankruptcy estate, [and was]
assertable only by the trustee in bankruptcy."
time of the circuit court's ruling, the statute of
limitations on Ricketts's claim had expired. Moreover,
the statute had not been tolled because, without standing,
Ricketts's suit was a legal nullity. Kocher v.
Campbell, 282 Va. 113, 119, 712 S.E.2d 477, 480-81
(2011) ("[A]n action filed by a party who lacks standing
is a legal nullity . . . [and] has no tolling effect on the
statute of limitations."). To avoid the statute of
limitations bar, Ricketts moved, pursuant to Code §
8.01-6, for the circuit court to "amend the named
plaintiff [in her pleadings] to [George McLean, the
bankruptcy trustee], due to the misnomer."
Alternatively, Ricketts asked that McLean be substituted as
the proper plaintiff pursuant to Rule 3:17. The circuit court
denied the motions. Ricketts appeals.