PATRICIA L. RAY
KATHERINE READY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF KEITH F. READY, ET AL.
THE CIRCUIT COURT OF HENRICO COUNTY Lee A. Harris, Jr.,
All the Justices
ELIZABETH A. McCLANAHAN, JUDGE.
L. Ray ("Ray") challenges the circuit court's
order (i) denying Ray's motion to amend her complaint to
name the personal representative of her deceased
husband's estate as the proper party defendant, and (ii)
dismissing the action as time-barred. Ray argues the trial court
erred in doing so on grounds that her action against the
estate was a nullity, and her complaint did not qualify under
the safe-harbor provision of Code § 8.01-6.3(B) for
amendment and relation back to the date the complaint was
originally filed for purposes of tolling the statute of
limitations. We disagree and affirm the judgment of the
F. Ready executed a holographic will that excluded his wife,
Ray, as a beneficiary of his estate. His will was admitted to
probate on August 25, 2016. Following her husband's
death, Ray filed an action to claim her elective share of the
augmented estate, naming the "Estate of Keith F.
Ready" (the "Estate") as the defendant. The
administratrix of the Estate, Katherine Ready
("Ready"), was not named as a party to the action
and her name does not appear anywhere in the complaint; nor
does the complaint mention either the terms or the concepts
of a personal representative, administrator, or
purported to serve process on the Estate by delivery to
Ready, and Ready filed an answer to the complaint on behalf
of the Estate, in which she asserted the affirmative defense
of abandonment. Ready signed the answer, "Katherine E.
Ready, Administratrix c.t.a. of the Estate of Keith F.
Ready." An evidentiary hearing on the action was then
scheduled for March 3, 2017. Prior to the hearing, counsel
for Ready realized that the action had been filed against the
Estate rather than Ready as the Estate's personal
representative, and as a "professional courtesy"
proposed to Ray's counsel that they submit an order
amending the caption. However, no such order was entered.
March 3, the parties appeared before the circuit court for
the evidentiary hearing. At that time, Ready made a
preliminary oral motion to dismiss, arguing that the action
was a nullity because it was filed only against the Estate.
Ready also argued that the complaint could not be amended to
substitute the proper party because an action brought against
an estate is an "absolute nullity." In such a case,
Ready further argued, the only resolution was to commence a
new action against the correct party, i.e., the personal
representative of the Estate; but here, Ray's action was
barred by the applicable statute of limitations. There was no
dispute then, nor is there one now, that the statute of
limitations for Ray's action seeking an elective share
expired on February 26, 2017, six days prior to the March 3
hearing. See Code § 64.2-302(B) (providing that
the surviving spouse of a decedent who dies domiciled in the
Commonwealth "may claim an elective share in the
decedent's augmented estate within six months from the
later of (i) the time of the admission of the decedent's
will to probate or (ii) the qualification of an administrator
on the decedent's intestate estate").
response, Ray requested that the circuit court enter an order
adding Ready to the complaint as a party defendant in
Ready's capacity as administratrix of the Estate. Ray
argued that she was entitled to such relief because the
summons served upon Ready named her as administratrix of the
Estate and Ready filed an answer on behalf of the Estate in
that capacity. Responding to this application, Ready argued
that the case law is clear that the proper party could not be
added to or substituted in the action because the suit was a
nullity, and thus neither a nonsuit nor a dismissal would
have the effect of tolling the statute of limitations, which
had already run.
circuit court took the motions under advisement and allowed
the parties to proceed with presenting evidence on the merits
of Ray's action. At the court's direction, the
parties subsequently submitted additional memoranda on the
motions and other matters and again appeared before the court
to make final arguments. Following argument, the court ruled
(i) that the suit was in fact a nullity, and any
participation in the litigation on the part of Ready did not
waive the nullity defense; and (ii) that the complaint could
not be amended pursuant to Code § 8.01-6.3(B) because
the proper party was not named anywhere in the complaint, and
thus the action was time-barred. The court accordingly
entered a final order dismissing the action with prejudice.
Ray challenges these rulings in this appeal.
appeal, Ray's central argument is that "the right
party" was before the circuit court in this suit before
the running of the statute of limitations by virtue of
Ready's answer to the complaint in her capacity as
personal representative of the Estate. Appellant's Br. at
4. Thus, Ray contends, with "the right party . . .
before [the] court although under a wrong name, an amendment
to cure [the] misnomer" in this case, where the Estate
was incorrectly named as the party defendant, should have
been allowed by the circuit court "notwithstanding the
running of the statute of limitations." Id. In
dismissing her complaint, Ray concludes, the court
"elevated form over substance" and thereby
improperly denied her the right to obtain an adjudication on
the merits. Id. at 13. We disagree.
party filing a civil action has the fundamental obligation
"to express the nature of the claim being asserted,
and the identity of the party against whom it is
asserted, in clear and unambiguous language so as to
inform both the court and the opposing party of the nature of
the claim." James v. Peyton, 277 Va. 443, 450
(2009) (emphasis added); see Rule 1:4. Furthermore,
it is well established under Virginia law that "[a]ll
suits and actions must be prosecuted by and against living
parties, in either an individual or representative
capacity." Rennolds v. Williams, 147 Va. 196,
198 (1927); see Swann v. Marks, 252 Va. 181, 184
(1996) (quoting Rennolds); Idoux v. Estate of
Helou, 279 Va. 548, 556 (2010) (same). That is because
"[t]here must be such parties to the record as can be
affected by the judgment and from whom obedience can be
compelled." Rennolds, 147 Va. at 198-99.
Whether a pleading has adequately identified the proper party
to be sued is a question of law, which we review de novo.
James, 277 Va. at 447.
with the above-stated principles, we held in Swann
that the filing of a personal injury suit against a
decedent's estate, rather than the personal
representative for the estate, was a "nullity" and
could not toll the statute of limitations. 252 Va. at 184.
"To toll the statute of limitations," we
determined, such "a suit must be filed against a proper
party." Id. In rejecting the plaintiff's
argument that the personal representative could be merely
substituted as the proper party defendant as the
"correction of a misnomer," we explained that
"the substitution of a personal representative for the
'estate' is not the correction of a misnomer.
Misnomer arises when the right person is incorrectly named,
not where the wrong defendant is named." Id.
(citing Rockwell v. Allman, 211 Va. 560, 561
(1971)). Of course, in Swann, as in the present
case, the personal representative of the decedent and the
decedent's estate were "two separate entities; the
personal representative [was] a living ...