BEA ANTISDEL, AS PERSONAL REPRESENTATIVE OF PETER ANTISDEL, DECEASED v. JEFFREY A. ASHBY, M.D., ET AL.
Record No. 082475
Supreme Court of Virginia
January 15, 2010
JUSTICE BARBARA MILANO KEENAN
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY, Dennis Lee Hupp, Judge
PRESENT: All the Justices
In this appeal, we consider whether the circuit court erred in holding that an administrator of an estate appointed solely for the purpose of bringing a wrongful death action under
Peter Antisdel died from a self-inflicted gunshot wound in August 2003. In 2005, his mother, Bea Antisdel (Antisdel), sought appointment as administrator of Peter‘s estate. Antisdel swore an “oath of fiduciary” stating that she would “perform the duties of [administrator] for the purposes allowed in Virginia Code § 8.01-50.” The clerk of the circuit court (the clerk), consistent with that oath, entered an order appointing Antisdel administrator “for purposes established under Code of Virginia section 8.01-50 et seq.”
Before seeking the appointment order, Antisdel had filed a wrongful death action against certain doctors who treated Peter, and against the manufacturers and distributors of medications prescribed to Peter for the treatment of acne and anxiety-like symptoms. The circuit court later granted Antisdel leave to amend this complaint to include survival claims for personal injuries suffered by Peter during his lifetime. Antisdel ultimately nonsuited this action, and also nonsuited a second action in which she alleged both wrongful death and survival claims.
In November 2006, Antisdel filed the complaint from which this appeal arises. In this third action, Antisdel asserted only survival claims. Antisdel alleged that her son suffered severe physical and mental harm because of certain undisclosed side effects and interactions of the several prescription medications.
In response, the defendants1 filed pleas in bar asserting that Antisdel lacked standing to bring the personal injury survival claims, because the order appointing her as administrator expressly limited her appointment to the initiation of a wrongful death action under
The circuit court granted the pleas in bar, holding that the clerk‘s appointment order expressly limited the scope of Antisdel‘s appointment to the pursuit of a wrongful death action and that, therefore, Antisdel did not have standing to assert survival claims on behalf of Peter‘s estate. The circuit court also declined to enter an order nunc pro tunc to expand retroactively Antisdel‘s administrative authority. The circuit court dismissed the case with prejudice, and Antisdel appeals from the circuit court‘s judgment.
Antisdel observes that under the plain language of
Antisdel also contends that the defendants have waived their argument regarding her authority to bring a survival action, because they did not raise this objection in the second action before the circuit court entered its nonsuit order. Additionally, Antisdel argues that even if the clerk had the authority to limit her appointment to the initiation of a
In response, the defendants contend that the circuit court did not err in denying Antisdel‘s untimely request for expanded administrative powers made over two years after her appointment. While the defendants concede that circuit courts have the power to correct a court clerk‘s errors or omissions by entry of a nunc pro tunc order, they argue that this case does not present a question of error or oversight by the clerk. The defendants assert that Antisdel received in the clerk‘s order precisely the limited authority that she requested.
Addressing the issue of waiver, the defendants assert that they are entitled to raise the issue of Antisdel‘s standing in the present action, because this action is wholly distinct from the second nonsuited action. We agree with the defendants’ arguments.
Initially, we find no merit in Antisdel‘s assertion that the defendants did not timely object to Antisdel‘s standing to bring a survival action. The defendants’ failure to raise that objection in the second nonsuited action does not bar their present objection. A defendant is not limited in a new action to raising only the defenses asserted in a previously nonsuited action, because the new action stands independently of any prior nonsuited action. See Daniels v. Warden, 266 Va. 399, 402, 588 S.E.2d 382, 383 (2003); see also Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994) (applying
We next consider the merits of Antisdel‘s appeal. The issue of her standing to bring the present survival claims involves a purely legal question of statutory interpretation that we review de novo. See Miller v. Highland County, 274 Va. 355, 364, 650 S.E.2d 532, 535 (2007); Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493 (2007); Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). We resolve this issue by applying established principles of statutory construction.
When the language of a statute is unambiguous, we are bound by the plain meaning of the words used. Smit v. Shippers’ Choice of Virginia, Inc., 277 Va. 593, 597, 674 S.E.2d 842, 844 (2009); Hicks v. Mellis, 275 Va. 213, 218, 657 S.E.2d 142, 144 (2008); Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001). We recognize that the General Assembly carefully selects the words contained in a statute, and we will not read a legislative enactment in a manner that renders any portion of that enactment useless. Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 483, 666 S.E.2d 361, 370 (2008); Hubbard v. Henrico Ltd. P‘ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998); Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984). Instead, we will apply an act of the legislature by giving reasonable effect to every word used. Jones, 227 Va. at 181, 314 S.E.2d at 64. Additionally, in a dispute that involves a number of related statutes, we will read and construe them together in order to give full meaning, force, and effect to each. Lynchburg, 276 Va. at 480-81, 666 S.E.2d at 368-69; Liberty Mutual Ins. Co. v. Fisher, 263 Va. 78, 84, 557 S.E.2d 209, 212 (2002); City of Virginia Beach v. Siebert, 253 Va. 250, 252, 483 S.E.2d 214, 216 (1997).
The issue of Antisdel‘s standing to bring the present action requires us to consider two statutes. The first statute,
In any case in which it is represented that an action at law for personal injury or death by wrongful act upon a cause of action arising within this Commonwealth is contemplated against or on behalf of the estate or the beneficiaries of the estate of a resident or nonresident of this Commonwealth who has died within or without this Commonwealth and for whose estate an executor has not been appointed, an administrator of such person may be appointed, solely for the purpose of prosecution of said suit, by the clerk of the court having jurisdiction for the probate of wills in the county or city in which jurisdiction and venue would have been properly laid for such action in the same manner as if the
person for whom the appointment thereof is sought had survived.
The second statute we consider,
An inventory under
§ 26-12 or a settlement under§ 26-17 shall not be required of a personal representative who qualifies for the sole purpose of bringing an action under§ 8.01-50 . However, if there be no surviving relative designated as a beneficiary under§ 8.01-53 and the court directs that the funds recovered in such action be paid to the personal representative for distribution according to law, such personal representative shall file the inventory required in§ 26-12 and the statement required under§ 26-17 .
The language of
The present situation, however, is not one in which an administrator with authority to assert alternative claims has been prevented from doing so. Instead, the present situation is one in which an administrator appointed solely for one purpose asserts that, by operation of
The two statutes quoted above, when considered together, directly refute Antisdel‘s contention. The plain language of
The fact that an administrator may be appointed solely for the purpose of bringing a wrongful death action is confirmed by a reading of
We also observe that that this statutory exception provided in
Contrary to Antisdel‘s contention, our reading of these two statutes does not force a premature election of remedies or place any
We also disagree with Antisdel‘s contention that the circuit court erred in refusing to “reform” the appointment order nunc pro tunc to grant her retroactively the authority to bring survival claims. The purpose of an order entered nunc pro tunc is to correct mistakes or omissions in the record so that the record properly reflects the events that actually took place. Brake v. Payne, 268 Va. 92, 100, 597 S.E.2d 59, 64 (2004); Council v. Commonwealth, 198 Va. 288, 292-93, 94 S.E.2d 245, 248 (1956). Orders entered nunc pro tunc cannot retroactively record an event that never occurred, or have the record reflect a fact that never existed. Brake, 268 Va. at 100, 597 S.E.2d at 64; Council, 198 Va. at 292-93, 94 S.E.2d at 248.
The entry of an order nunc pro tunc is a matter within the sound discretion of the circuit court. Jefferson v. Commonwealth, 269 Va. 136, 140, 607 S.E.2d 107, 110 (2005); Council, 198 Va. at 293, 94 S.E.2d at 248. Nunc pro tunc entry should be made only if “the evidence constituting the basis for the correction of the record [is] clear and convincing” and when “the errors to be corrected are proved beyond all doubt.” Council, 198 Va. at 293, 94 S.E.2d at 248.
Here, at the time Antisdel sought the appointment order from the clerk, the only action pending in the circuit court was her wrongful death claim. Antisdel swore an oath of fiduciary declaring that she would perform her duties as administrator for the sole purpose of bringing a wrongful death action under
Antisdel may not have received the qualification authority that she intended but, on this record, the responsibility for that mistake lies with Antisdel and not with the clerk. Antisdel asked to qualify for the limited purpose stated in
For these reasons, we will affirm the circuit court‘s judgment.
Affirmed.