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Who to sue? Who’s doing the suing?

Today’s crop of 18 opinions from the Supreme Court of Virginia brings additional evidence that lawyers still struggle to follow the rules about proper parties in civil actions.

In Johnson v. Hart, the beneficiary of a will was dissatisfied with the work of the attorney who served as executor of the will. When she sued the attorney for malpractice, however, she sued in her own name and not that of the estate. No good, said the court in an opinion written by Justice Donald Lemons. The beneficiary never had an attorney-client relationship with the lawyer, and legal malpractice claims may not be assigned. Summary judgment affirmed for lack of standing.

In a wrongful death action, the administrators of the estate apparently jettisoned their lawyer too early. In Hawthorne v. VanMarter, a suit arising from a fatal auto accident, the administrators filed their lawsuit through a licensed attorney. After a jury verdict for the defense, however, they filed an appeal on their own, in a pro se capacity. That won’t work, then-Justice Barbara Milano Keenan wrote for the court, because the administrators can act only in a representative capacity for the beneficiaries – they are not the true parties in interest. Appeal dismissed.

A third cautionary decision comes with some welcome relief – the harsh result no longer applies as of July 1. The harsh outcome is familiar – if you sue an estate, and not the personal representative of the estate, you’re out of court. That was the sad story for the plaintiff in Idoux v. Helou. The General Assembly provided the relief in House Bill 1193, which allows the improper pleading to be amended without penalty on the motion of any party or by the court on its own motion.

By Peter Vieth

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