In Virginia, sometimes a person or entity cannot sue or be sued on their own. Special rules dictate who the proper parties are, and how they must be named, in suits involving minors, incapacitated persons, estates, and trusts. Failure to follow those rules can lead to the dismissal of your case. Compounding the danger for unwary lawyers and litigants, the rules for lawsuits by minors are different than the rules for lawsuits involving fiduciaries like executors, administrators, trustees, guardians, and conservators.
A minor mistake with major consequences.
Under Virginia Code Section 8.01-8, a minor can only sue by her "next friend." But who is the proper party to sue on a minor's behalf? Is it the minor or the next friend? And how should the minor and next friend by named in a lawsuit? Under well-established law, such a lawsuit must be brought in the minor's name, by their next friend, not the other way around.
Failure to follow this rule can have disastrous consequences. Several years ago, I wrote about Sarah Gilbert and how her medical medical malpractice case was dismissed because the trial court found that Gilbert was not properly named as the plaintiff in the lawsuit. Unfortunately, the lawyer who filed Gilbert's case named her parents as the plaintiffs on Gilbert's behalf. When that complaint was dismissed, he then tried to correct the error by naming Gilbert as the plaintiff, by her parents as her next friends. But it was too late. By then, the statute of limitations had run, Gilbert's lawsuit was dismissed, and the lawyer was eventually hit with a large legal malpractice verdict.
While that result may seem harsh, the rule governing how to properly name a minor by her next friend is nothing new. In 2003, three years before Gilbert's lawyer filed her original complaint, the Supreme Court of Virginia decided Herndon v. St. Mary's Hospital on facts almost identical to those in Gilbert's case. In Herndon, the parents of a minor filed a medical malpractice suit arising from injuries their child suffered at birth. Just like in Gilbert's case, Herndon's parents filed suit in their own names as the minor child's next friend, rather than the other way around. The trial court dismissed the case, and the Supreme Court affirmed. Indeed, all the way back in 1943, in Kirby v. Gilliam, the Supreme Court of Virginia made clear that a suit brought for an infant "must be the infant's suit, and not that of the next friend," and that a suit filed in next friend's name "on behalf of" an infant "cannot be maintained."
The rule for fiduciaries is essentially the opposite.
Unlike next friends, fiduciaries like executors, administrators, trustees, guardians, and conservators are the proper parties to sue or be sued on behalf of the subjects of their fiduciary relationship. Under Virginia Code Section 8.01-6.3(A): "In any action or suit required to be prosecuted or defended by or in the name of a fiduciary, including a personal representative, trustee, conservator, or guardian, the style of the case in regard to the fiduciary shall be substantially in the following form: '(Name of fiduciary), (type of fiduciary relationship), (Name of the subject of the fiduciary relationship).'"
So, what suits are "required to be prosecuted or defended by or in the name of a fiduciary"? One example is a suit involving an incapacitated person. Once a guardian or conservator has been appointed for an incapacitated person, the incapacitated person loses the ability to sue or be sued in their own name. Rather, under Virginia Code Section 64.2-2025, the appointed fiduciary must "prosecute or defend all actions or suits" involving the incapacitated person.
The guardians of an adult child with disabilities found that out the hard way in Lopez-Rosario v. Habib. In 2010, Lopez-Rosario's parents filed a petition seeking to be appointed as her guardians. The court granted their petitions. Subsequently, Lopez-Rosario was allegedly injured during gallbladder surgery. In 2014, she filed a medical malpractice suit in her own name, with no indication that her parents had been appointed as her guardians. The trial court dismissed the suit, and the Supreme Court of Virginia agreed. Although Virginia law does provide for limited guardianships, in which a ward retains authority to make legal decisions, this was not one of those. It was a full guardianship, and Lopez-Rosario was deemed incapacitated. Thus, she lacked standing to sue on her own behalf.
Another example is a suit involving a decedent's estate. The Supreme Court of Virginia has repeatedly held that only an estate's "personal representative" (i.e., its executor or administrator) is the proper party to sue or be sued on behalf of the estate. As the Court has said in cases like Burns v. Equitable Associates and Reineck v. Lemen, a person does not have standing to sue on behalf of an estate merely because they are a beneficiary of the estate. Nor may an estate be named as a party directly, as the Court has made clear in cases like Estate of James v. Peyton, Swann v. Marks, and Ray v. Ready.
Virginia Code Section 8.01-6.3(B) provides a targeted remedy, but not a cure-all, in cases involving fiduciaries.
When a suit is filed by a party without standing, or against an improper party, it is a legal nullity, and the filing of such a suit does not stop the clock from running on the statute of limitations. Remember Sarah Gilbert? That was the problem she encountered. The first complaint her lawyer filed, which named her parents as parties rather than her, did not stop the clock. By the time he tried to fix it, it was too late. She would likely still encounter the same problem today, as the rules regarding naming minors and next friends have not changed.
Before 2010, cases involving decedents' estates were subject to the same fate if they reversed the names of the personal representative and the estate. For example, in 2009, the Supreme Court of Virginia decided Estate of James v. Peyton, in which it held that a suit filed by "the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq." was not filed by the proper party and did not stop the clock from running on the statute of limitations.
A year later, the General Assembly enacted Virginia Code Section 8.01-6.3. As stated above, subsection A of that statute prescribed a form by which fiduciaries like executors, administrators, trustees, guardians, and conservators should be named in lawsuits. However, subsection B provided a safety valve in suits involving fiduciaries, stating that: "Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion." When a pleading is amended under that provision, the "amendment relates back to the date of the original pleading." In other words, it is as if the amendment were filed on the date of the original suit, even though the original suit improperly named the fiduciary. Thus, in a case like Estate of James, because the pleadings identified the proper party (the administrator of the estate), they could now be amended to correctly name that party even after the statute of limitations would have otherwise expired.
But what if a pleading just names the estate as a party and does not mention the personal representative at all? The Supreme Court addressed that situation in a 2018 case: Ray v. Ready. In Ray, the plaintiff named the "Estate of Keith F. Ready" as a defendant in a lawsuit. She did not name the administrator of the estate as a party, list her name anywhere in the complaint, or even mention the concept of an administrator or personal representative. Under those circumstances, the trial court dismissed Ray's complaint and ruled that it could not be amended under 8.01-6.3(B) because the proper party, the administrator of the estate, was not named anywhere in the Complaint. Because "relation back" to the date of the original filing was not available, the statute of limitations had run. On appeal, the Supreme Court affirmed. Because the plaintiff failed to "otherwise identif[y] the proper part[y]," the safe-harbor provision in 8.01-6.3(B) was unavailable, and the plaintiff was time-barred from suing the estate's personal representative.
The takeaway: Virginia lawyers and litigants must follow the requirements for naming minors and fiduciaries as parties to lawsuits.
The rules for properly naming minors and fiduciaries in Virginia lawsuits are complex and have tripped up even experienced lawyers. Here at The Mottley Law Firm, we have experience representing minors and fiduciaries in all of our practice areas. Don't wait until a mistake has been made that destroys your case. Call The Mottley Law Firm at (804) 409-0876 to discuss your case today.