[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ROBERT P. DOHERTY, JR., Judge.
Robert F. Rider, Esq. 24 E. Church Avenue Roanoke, Virginia 24011
Robert S. Ballou, Esq. Johnson, Ayers Matthews, PLC P.O. Box 2200 Roanoke, Virginia 24009-2200
Dear Counsel:
On February 27, 2009, this Court rendered a letter opinion in the above captioned case, finding, among other things, that a Plaintiff who sued a decedent could take a nonsuit and refile the case within the six month extension granted by § 8.01-380, Code of Virginia (1950), as amended, and thereafter amend the action pursuant to § 8.01-229 (B)(2)(b), Code of Virginia (1950), as amended, to name the personal representative of decedent's estate as the proper defendant. That decision is wrong.
The same day this Court's decision was released, the Virginia Supreme Court, in Johnston Memorial Hospital v. Wanda Bazemore, Administratrix, Record No. 081038,
(February 27, 2009), rendered their opinion, stating in no uncertain terms, "that a proceeding that has no legal effect, i.e., one that is a nullity, cannot be nonsuited." An action filed against a deceased person is in fact a nullity. The saving language of § 8.01-229 (B)(2)(b) that allows such a lawsuit to be amended to name the personal representative as the appropriate defendant cannot be used if a nonsuit is taken and the statute of limitations has run. That is what happened in this case.
Counsel for the personal representative should prepare an appropriate order, making reference to both letter opinions in this case, and present it for entry after first obtaining endorsement of counsel.
Very truly yours,
Robert P. Doherty, Jr.