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Clutteur v. Rosier, Record No. 0104-22-3 (Va. Ct. App. Oct. 31, 2023)

Case Briefs

November 8, 2023

By: Juli M. Porto

Virginia Appellate Law Blog

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The Court of Appeals reminds us again to double- and triple-check that we are naming the correct party in our suit papers.


Facts. On January 2, 2017, Nancy Rosier hit and injured Debra Clutteur in a car crash. Rosier died on September 17, 2017. On December 14, 2018, Clutteur timely filed a complaint, but improperly named Rosier as the defendant. Erie Insurance Company filed an answer asserting that Rosier had passed, and a personal representative was appointed for Rosier. Rosier filed a plea in bar alleging that the action was a nullity since the statute of limitations had run, the time for substituting a personal representative for Rosier had expired, and all applicable statutory tolling provisions had expired.

Clutteur nonsuited and refiled, this time against Rosier’s personal representative. Rosier again filed a plea in bar. She asserted that, since the original case was time-barred and thus a nullity, the refiled case was not entitled to the tolling provisions of the nonsuit statute. Clutteur disagreed and further argued that the statute of limitations was tolled when counsel entered an appearance on Rosier’s behalf in the original action. The circuit court granted the plea in bar, and Clutteur appealed.


Issues. (1) Whether an action commenced against a decedent tolls the statute of limitations if nonsuited after the time for substituting a personal representative for the decedent under Code § 8.01‑229(B)(2)(b) has expired. (2) Whether counsel’s general appearance on behalf of a decedent tolls the statute of limitations.


Holdings. (1) No. Once an action commenced against a decedent is no longer amendable to substitute a decedent’s personal representative under Code § 8.01‑229(B)(2)(b), that action is a nullity. (2) No. Counsel does not become a party-defendant by virtue of a general appearance.


Notes. (1) An action filed against a deceased person is a legal nullity. However, Code § 8.01‑229(B)(2)(b) suspends that rule for a limited time during which a personal representative may be substituted for the decedent in an action. In that case, the action is deemed properly filed. It follows, therefore, that when a personal representative is not timely substituted for the decedent, the action remains a nullity. And, if an action is a nullity, “regardless of the reason it is such,” then there is no legal proceeding pending that can be nonsuiting. Thus, a nonsuited and otherwise properly refiled action is still a nullity if a personal representative was not timely substituted for a decedent as the party-defendant in the original action. (2) Counsel’s general appearance does not qualify them as a personal representative of the decedent, therefore that appearance does not change the character of the suit, which is an action improperly filed against a non-living defendant.


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