COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, O’Brien and Chaney

DEBRA K. CLUTTEUR

OPINION BY

v. Record No. 0104-22-3 JUDGE VERNIDA R. CHANEY

OCTOBER 31, 2023

NANCY C. ROSIER

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

Bruce D. Albertson, Judge

(Michael William Helm; Miller, Earle & Shanks, PLLC, on brief), 

for appellant. Appellant submitting on brief.

(Randall T. Perdue; TimberlakeSmith, on brief), for appellee. 

Appellee submitting on brief.

Debra K. Clutteur appeals the circuit court’s dismissal of her personal injury action 

commenced—and recommenced after a nonsuit—against a deceased defendant, Nancy C. 

Rosier, and defended by an insurer acting in the name of the decedent. After Clutteur 

recommenced her action by filing a second complaint against Rosier (second complaint) and 

moved to substitute Rosier’s personal representative as defendant, the circuit court ruled that 

Clutteur’s action was barred by the statute of limitations and granted the plea-in-bar filed by 

counsel acting in the name of Rosier. On appeal, Clutteur assigns error to the circuit court (1) 

granting Rosier’s plea-in-bar, (2) failing to find that a general appearance by defendant’s counsel 

tolled the statute of limitations, and (3) failing to find that the order of nonsuit in the nonsuited 

action entitled Clutteur to recommence the action against Rosier within six months.1

1 By granting Rosier’s plea-in-bar, the circuit court impliedly found that (1) a general 

appearance by defendant’s counsel did not toll the statute of limitations and (2) the order of 

nonsuit in the nonsuited action did not entitle Clutteur to recommence the action within six 

months. 

PUBLISHED
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Resolving this appeal requires this Court to determine the tolling effect, if any, of an 

action commenced against a decedent and nonsuited after the time for substituting a personal 

representative for the decedent under Code § 8.01-229(B)(2)(b) has expired. This Court holds 

that 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. 

Consequently, neither the commencement of that action nor a nonsuit of that action has any

tolling effect.

2

 Without the benefit of tolling from the void nonsuited action, the time for 

commencing an action against the personal representative of Rosier under Code 

§ 8.01-229(B)(2)(a) had expired.3 Therefore, although Clutteur’s requested amendment of her

second complaint to substitute Rosier’s personal representative for Rosier was authorized by 

Code § 8.01-229(B)(2)(b) and would have rendered the action properly filed, the action would 

have been untimely. Moreover, a general appearance by insurance counsel, acting in the name of 

2

In this action, Clutteur relies on tolling by nonsuit under Code § 8.01-229(E)(3). Since 

Clutteur’s originally filed action is a nullity, tolling under Code § 8.01-229(E)(1) is also 

unavailable. Under Code § 8.01-229(E)(1), a properly filed action that “for any cause abates or 

is dismissed without determining the merits” tolls the applicable statute of limitations during its 

pendency. Thus, if properly filed, Clutteur’s original action would have tolled the applicable 

limitations period during the pendency of the original action even if no nonsuit was available. 

Since the original action was filed on December 14, 2018, 19 days before January 2, 2019—the

last day within the applicable limitations period—Clutteur would have had 19 days remaining in 

the applicable limitations period to timely re-file her action against Rosier after the July 26, 2021 

dismissal. Thus, if Clutteur’s original action was properly filed, Clutteur would have had until 

August 14, 2021—extended to Monday August 16, 2021 due to August 14 falling on a 

Saturday—to timely re-file her action against Rosier. Clutteur did not re-file her action against 

Rosier until Tuesday, August 17, 2021. Unlike tolling under Code § 8.01-229(E)(1), tolling-bynonsuit under Code § 8.01-229(E)(3) continues to suspend the applicable limitations period as of 

the filing date of the properly filed nonsuited action if the action is recommenced within six 

months. However, since the originally filed action is a nullity, it has no tolling effect under 

either Code § 8.01-229(E)(1) or Code § 8.01-229(E)(3). 

3 Clutteur’s originally filed action is a nullity. Consequently, in effect, no action against 

Rosier was commenced before Rosier’s death. Therefore, Rosier died before the commencement 

of Clutteur’s action and the time for commencing an action against Rosier’s personal 

representative is governed by Code § 8.01-229(B)(2)(a). 
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Rosier under Code § 38.2-2206(F), did not relieve Clutteur of the obligation to amend her suit to 

timely substitute a personal representative for Rosier. Accordingly, this Court affirms the circuit 

court’s judgment sustaining Rosier’s plea-in-bar and dismissing Clutteur’s complaint with 

prejudice.

BACKGROUND

On January 2, 2017, Debra K. Clutteur and her husband, Stanley W. Clutteur, while

driving on a highway in Virginia, were allegedly injured when a car operated by Nancy C. Rosier

collided with them. Rosier, a West Virginia resident, subsequently died on September 17, 2017. 

Clutteur filed a complaint against Rosier on December 14, 2018, within the two-year 

statute of limitations for personal injury actions under Code § 8.01-243(A).4 However, Rosier 

was not a proper party-defendant because she had died prior to the commencement of Clutteur’s 

action.5 On August 16, 2019, acting in the name of “Nancy C. Rosier” under Code 

§ 38.2-2206(F), Erie Insurance Property & Casualty Company (Erie) filed an answer to 

Clutteur’s complaint. 

On March 17, 2021, the circuit court granted Rosier’s motion to file an amended answer 

asserting that Rosier was deceased as of September 17, 2017. After the amended answer was 

4

In addition to serving Rosier, Clutteur served her complaint on Erie Insurance Property 

& Casualty Company (Erie) pursuant to Code § 38.2-2206, titled “Uninsured motorist insurance 

coverage.” Upon being served, Erie had “the right to file pleadings and take other action 

allowable by law in the name of the owner or operator of the uninsured or underinsured motor 

vehicle.” Code § 38.2-2206(F). Accordingly, Erie filed an answer to the complaint in the name 

of “Nancy C. Rosier” on August 16, 2019. For the sake of brevity, the actions and pleadings of 

Erie done in the name of “Nancy C. Rosier” are herein referred to as Rosier’s actions and 

pleadings. 

5

In accordance with the general definitions provided under Code § 8.01-2, “action” and 

“suit” are used interchangeably in this opinion. 
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filed on April 16, 2021, a personal representative for Rosier, Marc D. Janney, Esq., qualified 

under Code § 64.2-454.6 

On April 23, 2021, Rosier filed a “Plea of Statute of Limitations and Motion for 

Summary Judgment.” Rosier asserted that Clutteur’s action against a deceased party-defendant 

was a nullity because the time provided for amending Clutteur’s complaint to substitute a 

personal representative for Rosier in accordance with Code § 8.01-229(B)(2)(b) had expired. 

Rosier also asserted that the applicable limitations period for commencing a personal injury 

action against a deceased defendant provided in Code § 8.01-243(A) and Code 

§ 8.01-229(B)(2)(a) had expired. 

On April 27, 2021, Clutteur moved to amend her complaint to substitute Rosier’s 

personal representative for Rosier. But prior to obtaining a ruling on the motion—and after the 

expiration of the time provided under Code § 8.01-229(B)(2)(b) for amending Clutteur’s 

complaint to substitute Rosier’s personal representative—Clutteur requested, and was granted, a 

nonsuit by order entered July 26, 2021. 

On August 17, 2021, well within the time period for recommencing a nonsuited action 

provided by Code § 8.01-229(E)(3), Clutteur recommenced her action against Rosier and again 

moved to substitute Rosier’s personal representative for Rosier as named party-defendant 

pursuant to Code § 8.01-229(B)(2)(b). 

On September 8, 2021, Rosier, by insurance counsel acting in the name of Rosier, filed a 

plea-in-bar, contending that Clutteur’s originally filed complaint against a deceased defendant, 

6 As relevant to this case, Code § 64.2-454 authorizes the appointment of an administrator 

solely for the defense of a civil action asserted against a deceased nonresident of Virginia if after 

60 days from the date of death, no other administrator has been appointed under Code § 64.2-502 

(authorizing appointment of an administrator of an intestate estate) or Code § 64.2-500 

(authorizing appointment of an administrator where a will either fails to name an executor, or the 

named executor is, or becomes, ineligible). 
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Rosier, was a legal nullity and, consequently, that Clutteur’s action against Rosier was 

time-barred.7 Rosier argued that Clutteur’s action was time-barred because (1) Clutteur’s action 

was filed after the expiration of the applicable limitations period and (2) Clutteur’s action was 

not entitled to tolling based on the nonsuited action pursuant to Code § 8.01-229(E)(3) because 

the limitations period for Clutteur’s action “had already run prior to the taking of the nonsuit.” 

Record (“R.”) 6. In support of its plea-in-bar, Rosier incorporated the arguments included in its 

“Plea of Statute of Limitations and Motion for Summary Judgment,” filed on April 23, 2021, in 

the nonsuited action, and attached the pleading as Exhibit A. R. 8-14. 

In opposition to Rosier’s plea-in-bar, Clutteur responded that her second filed complaint 

was not untimely because, having recommenced the nonsuited action within six months, the 

statute of limitations was tolled by the nonsuited action. Clutteur also asserted that a “general 

appearance” by Rosier’s counsel in the nonsuited action tolled the statute of limitations. 

After a hearing held on November 18, 2021, the circuit court granted Rosier’s plea-in-bar 

by order entered January 25, 2022, and dismissed Clutteur’s complaint with prejudice. The 

circuit court based its ruling on “reasons cited by Defendant.” R. 117. This appeal followed.

STANDARD OF REVIEW

“The standard of review on appeal when considering a plea in bar is ‘functionally de 

novo’ when the appellate court must consider solely the pleadings to resolve the issue 

presented.” Plofchan v. Plofchan, 299 Va. 534, 547 (2021) (citing Massenburg v. City of 

Petersburg, 298 Va. 212, 216 (2019)). “When the circuit court takes no evidence on the plea in 

bar, we accept the plaintiff’s allegations in the complaint as true.” Id. at 547-48 (citing Station 

#2, LLC v. Lynch, 280 Va. 166, 169 (2010)). 

7 Clutteur has not asserted any objection to Erie’s filing of its pleadings in the name of 

Rosier. 
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“Whether a pleading has adequately identified the proper party to be sued is a question of 

law, which we review de novo.” Ray v. Ready, 296 Va. 553, 558 (2018). “We review issues of 

statutory interpretation and a circuit court’s application of a statute to its factual findings, de

novo.” Cole v. Smyth Cnty. Bd. of Supervisors., 298 Va. 625, 635 (2020).

ANALYSIS

I. Clutteur’s originally filed action against Rosier is a legal nullity.

Rosier died in September 2017, more than a year before Clutteur’s original filing date of 

December 14, 2018. “[I]t 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.’” 

Ray, 296 Va. at 558 (second alteration in original) (quoting Rennolds v. Williams, 147 Va. 196, 

198 (1927)); Mann v. Land, 177 Va. 509, 514 (1941) (same); Booth v. Dotson, 93 Va. 233, 235 

(1896) (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.’” Ray, 296 Va. at 558 (alteration in 

original) (quoting Rennolds, 147 Va. at 198-99); Mann, 177 Va. at 514 (citing 1 Freeman on 

Judgments, sec. 153). Accordingly, prior to the enactment of Code § 8.01-229(B)(2)(b), an 

action commenced against a deceased person was a legal nullity. See Est. of James v. Peyton, 

277 Va. 443, 450 (2009); Parker v. Warren, 273 Va. 20, 24 (2007) (citing Rennolds, 147 Va. at

198-200). “Thus, [prior to the enactment of Code § 8.01-229(B)(2)(b),] if a litigant filed a 

personal action against a defendant who, possibly unbeknownst to the plaintiff, had died, . . . the 

statute of limitations would continue to run.” James, 277 Va. at 450 (second alteration in 

original) (quoting Parker, 273 Va. at 24).

Nor could the error, even if unintentional, be cured by substituting 

the executor or administrator of the deceased party’s estate 

“because the personal representative was a person distinct from the 

decedent, the mistaken naming of the decedent was not a 
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misnomer and substitution of the personal representative did not 

relate back to the initial filing of the lawsuit.”

Id. at 450-51 (quoting Parker, 273 Va. at 24).8

In a personal injury action seeking recovery for injuries caused by a decedent, the proper 

party-defendant is the decedent’s personal representative authorized to defend such actions on 

the decedent’s behalf. See Swann v. Marks, 252 Va. 181, 184 (1996) (“[A]ctions [against a 

decedent] may only be [properly] filed against the decedent’s personal representative.” (citing 

Code § 8.01-229(B)(2), (B)(4))). 

By providing a means for converting an action filed against a decedent to a properly filed 

action against the decedent’s personal representative, Code § 8.01-229(B)(2)(b) suspends the 

rule that an action filed against a decedent is a legal nullity. If a complaint filed against a 

decedent is amended to substitute the decedent’s authorized personal representative within the 

time limit provided in Code § 8.01-229(B)(2)(b), the complaint is taken to have been properly 

filed against the personal representative. See McManama v. Plunk, 250 Va. 27, 35 (1995) 

(holding that a suit filed against a decedent is not a nullity when amended to substitute a personal 

representative in accordance with Code § 8.01-229(B)(2)(b)); Code § 8.01-229(B)(2)(b). Code 

§ 8.01-229(B)(2)(b) provides:

Effect of death of a party.--The death of a person . . . against whom 

an action may be brought shall toll the statute of limitations as 

follows:

. . . .

Death of person against whom personal action may be brought.

8 Although Code § 8.01-6.3 authorizes—without time limit—the substitution of a 

personal representative for an improperly named party in any action “required to be . . . defended 

by . . . a personal representative,” that authorization is limited to actions in which the personal 

representative has otherwise been identified. See Ray, 296 Va. at 560 (rejecting contention that 

Code § 8.01-6.3 authorizes substituting a personal representative for the estate of a decedent 

where “neither the name of the personal representative nor any reference thereto is anywhere to 

be found in the body of the complaint”). 
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. . . .

If a person against whom a personal action may be brought dies 

before suit papers naming such person as defendant have been filed 

with the court, then such suit papers may be amended to substitute 

the decedent’s personal representative as party defendant before 

the expiration of the applicable limitation period or within two 

years after the date such suit papers were filed with the court, 

whichever occurs later, and such suit papers shall be taken as 

properly filed.

(Emphasis added). Since Code § 8.01-229(B)(2)(b) only suspends the rule that an action against 

a decedent is a legal nullity to provide a limited opportunity to substitute the decedent’s personal 

representative for the decedent, it follows that a failure to timely make the substitution renders 

the action a legal nullity. 

Clutteur contends that Code § 8.01-229(B)(2)(b) supplanted the rule that an action 

against a decedent is a nullity. Accordingly, Clutteur argues that the only consequence of 

Clutteur’s failure to timely substitute Rosier’s personal representative in the originally filed

action is that Clutteur was required to restart the Code § 8.01-229(B)(2)(b) substitution period by 

taking a nonsuit and recommencing the action against Rosier. This Court disagrees. By 

providing a means for converting an improperly filed action against a decedent into a properly

filed action against a personal representative, the General Assembly recognized that an action 

against a decedent is not properly filed. Although Code § 8.01-229(B)(2)(b) does not expressly 

state the status of an action against a decedent that is not amended to substitute a personal 

representative, the General Assembly is presumed to have been aware of Supreme Court of 

Virginia precedent holding that a suit naming a decedent as a party-defendant is a legal nullity. 

See Ray, 296 Va. at 558 (“[I]t 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.’” (second alteration in original) (quoting Rennolds, 147 Va. at 198)); Lambert v. Sea 

Oats Condo. Ass’n, Inc., 293 Va. 245, 254 (2017) (“We presume that when the General 
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Assembly enacts legislation, it is aware of this Court’s precedents.”). An amendment of suit 

papers to substitute a personal representative for the decedent is authorized by Code 

§ 8.01-229(B)(2)(b) only if the amendment is made within the applicable limitations period, or 

within two years of the filing date of such papers, whichever occurs later. See Code 

§ 8.01-229(B)(2)(b). Consequently, although Code § 8.01-229(B)(2)(b) suspends the rule that an 

action against a decedent is a nullity, once the action is no longer amendable to a properly filed

action against a personal representative, that action is a nullity having no legal effect.9 

It follows that Clutteur’s original action against the decedent Rosier—filed on December 

14, 2018—is a legal nullity because Clutteur failed to amend the action to name a personal 

representative of Rosier within the time provided by Code § 8.01-229(B)(2)(b). See Code 

§ 8.01-229(B)(2)(b) (authorizing amendment substituting a personal representative for a 

decedent). Clutteur’s cause of action for personal injury accrued on January 2, 2017, when 

Clutteur’s vehicle was allegedly struck by a vehicle operated by Rosier. The applicable 

limitations period for commencing an action relating to the alleged personal injury ended on 

January 2, 2019—two years after the cause of action accrued. See Code § 8.01-243(A). 

Therefore, Code § 8.01-229(B)(2)(b) permitted an amendment of Clutteur’s originally filed

action to substitute a personal representative for Rosier by the later of January 2, 2019—two 

years after the cause of action for personal injury accrued—and December 14, 2020, two years 

after the action against Rosier was filed. However, by COVID-19 judicial emergency orders, 

statutes of limitation were tolled from March 16, 2020, through July 19, 2020, extending the

9 Under Clutteur’s proposed construction of Code § 8.01-229(B)(2)(b), whether an action 

against a decedent is a nullity would indefinitely depend on whether a personal representative is 

substituted for the decedent in some future recommenced action.
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December 14, 2020 deadline 126 days to April 19, 2021.10 It is undisputed that Clutteur did not

amend her originally filed action to substitute a personal representative for Rosier by the April 

19, 2021 deadline. 

Because Clutteur did not avail herself of the opportunity to amend her originally filed

complaint under Code § 8.01-229(B)(2)(b), the originally filed complaint could no longer be 

amended to substitute a personal representative for Rosier while preserving the original filing 

date of December 14, 2018. See James, 277 Va. at 450 (unless authorized by Code 

§ 8.01-229(B)(2)(b), substitution of personal representative for a deceased party does not relate

back to the filing date of the originally filed action); see also Code § 8.01-229(B)(2)(b) 

(providing time limits within which an amendment to substitute a personal representative for a 

decedent relates back to the original filing date). Thus, after the Monday, April 19, 2021 

deadline expired, Clutteur’s originally filed complaint was an unamendable suit filed against a 

deceased person and, consequently, a legal nullity. See Swann, 252 Va. at 184 (suit filed against 

a deceased party is a legal nullity). 

II. The commencement of the nonsuited action did not toll the statute of limitations.

Clutteur contends that the nonsuit tolling provided under Code § 8.01-229(E)(3) 

preserves the tolling effect of the commencement date of her originally filed and nonsuited 

action. Code § 8.01-229(E)(3) provides: 

If a plaintiff suffers a voluntary nonsuit as prescribed in [Code] 

§ 8.01-380, the statute of limitations with respect to such action 

shall be tolled by the commencement of the nonsuited action

. . . and the plaintiff may recommence his action within six months 

from the date of the order entered by the court, or within the 

original period of limitation . . . .

10 It is undisputed that the statute of limitations was suspended by the COVID-19 judicial 

emergency orders between March 16, 2020, and July 19, 2020. See English v. Quinn, 

76 Va. App. 80, 84 (2022) (COVID-19 judicial emergency orders suspended the running of 

statutes of limitation for 126 days between March 16, 2020, and July 19, 2020). 
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(Emphasis added). “In Virginia, a plaintiff may take one nonsuit as a matter of right.” INOVA 

Health Care Servs. v. Kebaish, 284 Va. 336, 344 (2012) (citing Code § 8.01-380(B) (“[O]ne 

nonsuit may be taken to a cause of action . . . as a matter of right.”)). Code § 8.01-380(E) further 

provides that “[a] voluntary nonsuit taken pursuant to [Code § 8.01-380] is subject to the tolling 

provisions of [Code § 8.01-229(E)(3)].” Plaintiffs generally take a voluntary nonsuit when 

encountering problems that would be resolved by restarting the litigation while preserving the 

tolling effect of the commencement of the nonsuited action.

11

 Consequently, “[t]he right to take 

a nonsuit . . . is a powerful tactical weapon in the hands of a plaintiff.” Trout v. Commonwealth 

Transp. Comm’r of Va., 241 Va. 69, 73 (1991). However, Code § 8.01-380 has been construed 

to limit the availability of nonsuits to “validly pending proceeding[s].” See Johnston Mem’l 

Hosp. v. Bazemore, 277 Va. 308, 313 (2009) (“Although Code § 8.01-380(B) grants one nonsuit 

‘as a matter of right,’ only a validly pending proceeding can be nonsuited.” (quoting Code 

§ 8.01-380(B))); Nerri v. Adu-Gyamfi, 270 Va. 28, 31 (2005) (only valid proceedings can be 

nonsuited). As explained in Bazemore: 

If an action is a nullity, regardless of the reason it is such, then no 

legal proceeding is pending that can be nonsuited. To hold 

otherwise could give an action that has no legal effect the benefit 

of the tolling provision and the six-month period in which to refile 

a nonsuited action provided in Code § 8.01-229(E)(3).

Bazemore, 277 Va. at 314. Because Clutteur’s originally filed action against the deceased Rosier 

was not amendable to substitute Rosier’s personal representative for Rosier after the time for 

making the amendment under Code § 8.01-229(B)(2)(b) expired, that action was a nullity, not a 

11 For example, recommencing an action after a nonsuit permits the correction of a 

misnomer that incorrectly identifies the defendant. See Edwards v. Omni Int’l Servs., Inc., 

301 Va. 125, 129 (2022) (observing that a plaintiff “may nonsuit the case and file a new action 

correctly naming the defendant”). Recommencing an action after a nonsuit also restarts the time 

limit for serving the defendant. See Collins v. Shepherd, 274 Va. 390, 399 (2007) (after failing 

to timely serve the defendant, plaintiff was entitled to restart the service time limit by taking a 

nonsuit and recommencing the action). 
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valid pending proceeding. Consequently, a nonsuit was unavailable and Clutteur’s refiled action 

is not entitled to the tolling under Code § 8.01-229(E)(3). See id. at 313-14. 

Clutteur contends that McManama v. Plunk authorizes the use of a nonsuit to extend the 

time for substituting a personal representative for the deceased Rosier under Code 

§ 8.01-229(B)(2)(b), but McManama is distinguishable. In McManama, after allegedly suffering 

a personal injury caused by Terry Plunk on September 5, 1988, the plaintiff filed an action 

against Plunk on August 27, 1990, before the applicable limitations period for personal injury 

actions would otherwise have expired on September 5, 1990. See McManama, 250 Va. at 29; 

Code § 8.01-243(A) (personal injury actions must be filed within two years after the cause of 

action accrues). While the action was pending, and after the expiration of the applicable 

limitations period, Plunk died on February 26, 1991. McManama, 250 Va. at 29. A personal 

representative for Plunk qualified on July 30, 1991. Id. However, since Plunk died after

expiration of the applicable limitations period, a new action commenced against the personal 

representative was not authorized by Code § 8.01-229(B)(2)(a). See Code § 8.01-229(B)(2)(a)

(authorizing a suit against the personal representative of person who dies before the expiration of 

the applicable limitations period). Also, since the plaintiff’s suit was not filed after Plunk died, 

Code § 8.01-229(B)(2)(b) did not authorize substituting the personal representative for Plunk. 

See Code § 8.01-229(B)(2)(b) (providing time to substitute personal representative for decedentdefendant in a suit filed after the defendant died). Without other options for asserting an action 

against Plunk’s personal representative, the plaintiff nonsuited the action against the deceased
- 13 -

Plunk on August 29, 1991.12 McManama, 250 Va. at 29. Then, in accordance with Code 

§ 8.01-229(E)(3), the plaintiff filed, within six months from the entry of the nonsuit order, a 

complaint naming the decedent that, having been filed after Plunk’s death, was eligible for 

amendment under Code § 8.01-229(B)(2)(b). See id. at 30; Code § 8.01-229(E)(3) (action 

commenced within six months of a nonsuit order is tolled by the commencement of the 

nonsuited action); Code § 8.01-229(B)(2)(b) (authorizing substitution of a personal 

representative within two years of filing a complaint against a defendant who predeceased the 

filing). Subsequently, the plaintiff filed a motion to substitute the personal representative for the 

decedent, which the trial court granted. McManama, 250 Va. at 30. Relying on Code 

§ 8.01-229(B)(2)(b), the Supreme Court rejected the defendant’s contention that, despite the 

substitution of a personal representative for the decedent, the action was a nullity because it was 

filed “against a known dead person.”

13

 See id. at 35 (observing that “the personal representative 

properly was substituted as a party defendant” (citing Code § 8.01-229(B)(2)(b))). 

Although the plaintiff in McManama, unlike Clutteur, was authorized to obtain a nonsuit 

and recommence the action with the statute of limitations tolled by the nonsuited action, 

McManama is easily distinguishable. The original complaint in McManama—unlike Clutteur’s 

12 The plaintiff at first purported to recommence the nonsuited action by filing a second 

complaint naming the personal representative as the party defendant. McManama, 250 Va. at

29-30. The defendant moved to dismiss based on the statute of limitations, asserting that the 

action against the personal representative was not entitled to tolling from the commencement of 

the nonsuited action because the action against the personal representative was not the same as 

the nonsuited action against the decedent. Id. In response, the plaintiff filed a third complaint

against the deceased Plunk in order to recommence the nonsuited action and benefit from tolling 

under Code § 8.01-229(E)(3). Id. at 30. The plaintiff then moved to substitute Plunk’s personal 

representative for the deceased Plunk in accordance with Code § 8.01-229(B)(2)(b). Id. 

13 Since the defendant in McManama only claimed that the action filed against a known 

dead person was a nullity, the Supreme Court did not expressly address the status of the original 

action. The original action was nonsuited after the death of a defendant who was alive at the 

time the action was commenced. 
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complaint—was properly filed against a defendant who was alive, and thus a proper party, when 

the nonsuited action was commenced. Cf. Bazemore, 277 Va. at 313-14 (nonsuit unavailable in 

an action that was not properly commenced). 

III. Clutteur’s recommenced action against Rosier is time-barred.

Without any tolling benefit from the commencement of Clutteur’s originally filed action, 

Clutteur’s action, commenced by the August 17, 2021 filing of the second complaint against the 

deceased Rosier, is time-barred. Code § 8.01-229(B)(2)(b) authorizes the amendment of 

Clutteur’s second complaint to substitute Rosier’s personal representative for Rosier. See Code 

§ 8.01-229(B)(2)(b) (providing a minimum of two years after filing to substitute a personal 

representative for a decedent-defendant).

14

 Although an amendment of the second complaint to 

substitute a personal representative for the deceased Rosier would render the second complaint 

properly filed, the resulting action against the personal representative would only relate back to 

August 17, 2021, the filing date of the second complaint. Because the originally filed action was 

not properly filed and is a nullity, it is ineffective to establish a tolling commencement date. As 

explained below, Clutteur only had until January 21, 2021—well before August 17, 2021—to 

timely file suit against Rosier’s personal representative.

Rosier died on September 17, 2017, before the action commenced by the filing the 

second complaint, and—given that the cause of action accrued on January 2, 2017—before the 

expiration of the applicable two-year limitations period on January 2, 2019. See Code 

§ 8.01-243(A) (stating a two-year statute of limitations for personal injury actions). The time for 

14 Rosier contends that Code § 8.01-229(B)(2)(b) only authorizes amendment of the 

originally filed complaint. This Court disagrees. There is no support in the plain language of 

Code § 8.01-229(B)(2)(b) for limiting the phrase “such suit papers” to the suit papers filed in a 

prior or first-filed action against a decedent. See Commonwealth v. Amos, 287 Va. 301, 307

(2014) (“This Court may not construe the plain language of a statute ‘in a manner that amounts 

to holding that the General Assembly meant to add a requirement to the statute that it did not 

actually express.’” (quoting Vaughn, Inc. v. Beck, 262 Va. 673, 679 (2001))). 
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commencing an action against a personal representative for a defendant who dies before the 

expiration of the applicable limitations period and before commencement of the action is 

provided in Code § 8.01-229(B)(2)(a). Code § 8.01-229(B)(2)(a) provides: 

Effect of death of a party.--The death of a person . . . against whom 

an action may be brought shall toll the statute of limitations as 

follows:

. . . .

Death of person against whom personal action may be brought.

If a person against whom a personal action may be brought dies 

before the commencement of such action and before the expiration 

of the limitation period for commencement thereof then . . . an 

action may be commenced against the decedent’s personal 

representative before the expiration of the applicable limitation 

period or within one year after the qualification of such personal 

representative, whichever occurs later.

Although the time limit stated in Code § 8.01-229(B)(2)(a) expressly extends the commencement 

date to one year after the qualification of a personal representative, Code § 8.01-229(B)(6) limits 

the impact of any delay in qualifying the personal representative to two years. See Code 

§ 8.01-229(B)(6) (“Delayed qualification of personal representative”). Code § 8.01-229(B)(6) 

provides: 

Delayed qualification of personal representative.--If there is an 

interval of more than two years between the death of any person 

. . . against whom a cause of action has accrued . . . and the 

qualification of such person’s personal representative, such 

personal representative shall, for the purposes of this chapter, be 

deemed to have qualified on the last day of such two-year period.

Thus, if a decedent’s personal representative qualifies more than two years after the decedent’s 

death, Code § 8.01-229(B)(6) deems the personal representative to have qualified two years after 

the decedent’s death and extends the commencement period to one year after that two-year 

period, or three years after the decedent’s death. Consequently, Code § 8.01-229(B)(2)(a) read 

together with Code § 8.01-229(B)(6) extends the time to properly commence an action against a 
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decedent’s personal representative to the later of (1) the expiration of the applicable limitations 

period, and (2) the earlier of (i) one year from the qualification of the personal representative,

and (ii) three years from the death of the decedent. 

Accordingly, if, as here, the applicable limitation period expires before the last day of the 

maximum three-year period for commencing an action against a qualified personal 

representative, the failure to qualify a personal representative in time to commence an action 

against the personal representative within three years is fatal. Thus, where no personal 

representative has qualified to represent a deceased person in an action, Code § 8.01-229(B)(6) 

places the burden of qualifying a personal representative on the litigant seeking to properly and 

timely commence an action. Where the appointment of a personal representative is delayed, a 

litigant is required to move the trial court to appoint a personal representative for the limited 

purpose of defending the action in accordance with Code § 64.2-454. Code § 64.2-454 

authorizes appointing a personal representative of a deceased person to defend a personal injury 

action where no personal representative has otherwise qualified within 60 days of that person’s 

death.15 See Code § 64.2-454 (authorizing appointment of a personal representative to defend an 

action asserted against a deceased person’s estate or beneficiaries). 

On April 16, 2021, a personal representative qualified under Code § 64.2-454 to defend 

Rosier against Clutteur’s action. However, under Code § 8.01-229(B)(6), a personal 

representative is deemed to have qualified on September 17, 2019, two years after Rosier died. 

See Code § 8.01-229(B)(6). Under Code § 8.01-229(B)(2)(a), Clutteur had a year, or until 

September 17, 2020, to commence her suit against Rosier’s personal representative. But, 

15 Code § 64.2-454 limits the appointment of a case-specific personal representative to 

circumstances where an executor or administrator has not been appointed within 60 days of the 

decedent’s death under Code § 64.2-500 (providing for appointment of an administrator of a 

will) or Code § 64.2-502 (providing for the appointment of an administrator of an intestate 

estate). 
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pursuant to the COVID-19 judicial emergency orders, all case-related deadlines were suspended 

for 126 days between March 16, 2020, to July 19, 2020. See English, 76 Va. App. at 84

(COVID-19 judicial emergency orders suspended case deadlines for 126 days between March 

16, 2020, and July 19, 2020). Consequently, the September 17, 2020 deadline for Clutteur to 

commence her suit against Rosier’s personal representative was extended 126 days to January 

21, 2021. Since the cause of action against Rosier accrued on January 2, 2017, the applicable 

limitations period for Clutteur’s personal injury action expired on January 2, 2019. See Code 

§ 8.01-243(A) (defining a two-year limitations period for personal injury actions). Clutteur’s 

suit, filed on August 17, 2021, is time-barred under Code § 8.01-229(B)(2)(a) because it was 

filed after the expiration of the applicable limitations period on January 2, 2019, and after 

January 21, 2021. See Code § 8.01-229(B)(2)(a), (B)(6). Thus, this Court affirms the circuit 

court’s order granting the plea-in-bar and dismissing Clutteur’s action with prejudice. 

Clutteur separately assigns error to the circuit court’s “failing to find that the applicable 

statute of limitations was tolled when counsel for defendant had entered a general appearance on 

behalf of defendant.” However, Clutteur does not cite any supporting authority nor explain how 

the general appearance of insurance counsel and filing pleadings in the name of “Nancy C. 

Rosier” has any impact on her deadline under Code § 8.01-229(B)(2)(b) for amending her action 

to substitute Rosier’s personal representative for Rosier. Nonetheless, to the extent that Clutteur 

contends that the presence of counsel filing pleadings in the name of the decedent relieved 

Clutteur of the obligation to amend her action pursuant to Code § 8.01-229(B)(2)(b), this Court 

disagrees. Counsel, acting in the name of the decedent, did not become the party-defendant in 

Clutteur’s action by virtue of a general appearance. Nor did counsel’s general appearance 

qualify counsel as the authorized personal representative of the decedent under Code § 64.2-454. 
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Moreover, the circuit court granted the plea-in-bar for the reasons stated by Rosier. Thus, 

the circuit court did not accord any tolling effect to the purportedly nonsuited action because 

Clutteur’s failure to timely convert that action into a properly filed action against a personal 

representative in accordance with Code § 8.01-229(B)(2)(b) rendered that action a nullity. 

Clutteur has not identified any part of the record where the circuit court ruled that the 

commencement of the originally filed action, even if properly amended, would not have tolled

the statute of limitations.16 

CONCLUSION

Clutteur’s failure to amend the originally filed action to substitute a qualified personal 

representative for the named deceased party-defendant within the time allowed by Code 

§ 8.01-229(B)(2)(b) rendered the originally filed action unamendable, and, therefore, a nullity 

with no legal effect. Additionally, the general appearance of insurance counsel filing pleadings 

in the name of the deceased defendant did not relieve Clutteur of the obligation to timely amend 

her originally filed action to substitute a personal representative for the deceased Rosier. 

Because the originally filed action is a nullity, it was not a properly filed action, and a nonsuit 

was unavailable. Moreover, because it is a nullity, the originally filed action does not establish a 

commencement date for tolling the statute of limitations. Consequently, even if Clutteur

amended the second complaint to substitute Rosier’s personal representative for the deceased 

Rosier under Code § 8.01-229(B)(2)(b), the resulting action would be time-barred based on the 

16 Clutteur does not assign error to the circuit court’s failure to grant the pending motion 

to substitute Rosier’s personal representative for Rosier prior to entertaining and ruling on 

Rosier’s plea-in-bar. Clutteur has also not assigned error to the circuit court’s entry of a final 

order in an improperly filed suit against a decedent. “Only assignments of error listed in the 

brief will be noticed by this Court.” Rule 5A:20(c)(1).
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filing date of the second complaint. Accordingly, this Court affirms the judgment of the circuit

court granting Rosier’s plea-in-bar and dismissing Clutteur’s action with prejudice. 

Affirmed.