Tune v. Dullont

The parties appeared, the defendant by special appearance, on the defendant’s motion to dismiss and evidence was presented and argument was heard.

The court finds that the plaintiff named in her motion for judgment “Alexander Dullont.” Service was attempted on that person and returned “not found” about one month before the statute of limitation ran on February 11, 2004. The Commissioner of the Department of Motor Vehicles was served on December 3, 2004.

Defendant is a female whose name is “Alexandra Dumont.” She had not lived at the address given for service for five to six months prior to service.

Defendant testified that she had never received any notice of the institution of the action until, at the earliest, April 2005, when her attorney advised that a suit had been filed.

Defendant was never a non-resident or otherwise deemed to have appointed a statutory agent for service of process.

Defendant was never actually served with the motion for judgment or otherwise made aware of its existence until after the statute of limitation ran on Februaiy 11, 2004. Virginia Code § 8.01-6 does not permit a relation back to the original filing date under these circumstances.

The motion to dismiss is sustained.

It is, therefore, ordered that the motion for judgment is dismissed with prejudice.