Antisdel v. Ashby

PRESENT: All the Justices

BEA ANTISDEL, AS PERSONAL REPRESENTATIVE
OF PETER ANTISDEL, DECEASED

v. Record No. 082475 OPINION BY
JUSTICE BARBARA MILANO KEENAN
January 15, 2010
JEFFREY A. ASHBY, M.D., ET AL.

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis Lee Hupp, Judge

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 Code § 8.01-

50 lacked standing to assert survival claims on behalf of the

estate.

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 Code § 8.01-50. 2 The circuit court held a

hearing on the pleas in bar during which Antisdel made several

1
The defendants to the third action in the circuit court
were Watson Pharmaceuticals, Inc., Harrisonburg Family Practice
Associates, P.C., Jeffrey A. Ashby, M.D., Michael J. Syptak, M.D.,
Harrisonburg Dermatology, PLC, Jerri A. Alexiou, M.D., Sandoz,
Inc., and Eli Lilly & Company, Inc. Eli Lilly & Company, Inc.
settled its claims with Antisdel and is not a party to this
appeal. After this appeal was granted, Sandoz, Inc. and Watson
Pharmaceuticals, Inc. also settled their claims with Antisdel.
2
The defendants also filed pleas in bar asserting that the
statute of limitations barred Antisdel’s action. However, the
circuit court did not reach that issue.

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arguments, including that the circuit court should “reform” the

appointment order nunc pro tunc to include the authority to bring

survival claims.

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 Code

§ 64.1-75.1, a circuit court clerk may appoint an administrator

for the purpose of litigating two separate types of suit, wrongful

death actions and survival actions. Thus, Antisdel asserts that

the clerk lacked authority to limit Antisdel’s appointment to only

one of these types of action. Antisdel argues that a contrary

position would deny an administrator the right to assert claims in

the alternative, which expressly is permitted by Code §§ 8.01-272

and -281, and would thereby prematurely force an administrator to

an election of remedies.

Antisdel also contends that the defendants have waived their

argument regarding her authority to bring a survival action,

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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 wrongful death action, the

circuit court erred when it refused to “reform” the appointment

order nunc pro tunc to expand Antisdel’s authority as

administrator.

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

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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

Code § 8.01-380).

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

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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, Code

§ 64.1-75.1, addresses the appointment of an administrator and

provides in relevant part:

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

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 such action in the same manner as if the person for whom
the appointment thereof is sought had survived.

The second statute we consider, Code § 26-12.2, provides an

exception to the inventory and settlement duties of a personal

representative. That statute states:

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 Code § 64.1-75.1 plainly permits a circuit

court clerk to appoint an administrator for the purpose of

bringing both personal injury survival actions and wrongful

death actions. Administrators appointed for both purposes may

assert wrongful death and personal injury survival claims in the

alternative, although they may only recover once for the same

injury. See Code § 8.01-56; Centra Health, Inc. v. Mullins, 277

Va. 59, 77-79, 670 S.E.2d 708, 717-18 (2009). Additionally,

administrators who assert both types of claims cannot be forced

to elect between them before they have had a full opportunity to

develop their case. Id. at 77-79, 670 S.E.2d at 717-18.

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

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one in which an administrator appointed solely for one purpose

asserts that, by operation of Code § 64.1-75.1, she has standing

to pursue a different type of claim not specified in her written

order of appointment.

The two statutes quoted above, when considered together,

directly refute Antisdel’s contention. The plain language of

Code § 64.1-75.1 authorizes a circuit court clerk, when an

executor has not been appointed for an estate, to appoint an

administrator solely for the purpose of bringing an action for

personal injury or wrongful death. Nothing in the language of

this statute, however, requires that a circuit court clerk

always authorize an administrator seeking to file one particular

type of action to bring both types of actions.

The fact that an administrator may be appointed solely for

the purpose of bringing a wrongful death action is confirmed by a

reading of Code § 26-12.2. This statute specifically exempts a

personal representative who has qualified for the “sole purpose”

of bringing a wrongful death claim from the inventory and

settlement filing requirements applicable to the administration

of an estate. Moreover, if the appointment of an administrator

solely for purposes of bringing a wrongful death action, as

referenced in Code § 26-12.2, were prohibited by implication in

Code § 64.1-75.1, the filing exceptions created by Code § 26-

12.2 would be rendered meaningless. We will not read this

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statute in a manner that would eliminate an entire provision

crafted by the General Assembly. See Lynchburg, 276 Va. at 483,

666 S.E.2d at 370; Hubbard, 255 Va. at 340, 497 S.E.2d at 338;

Jones, 227 Va. at 181, 314 S.E.2d at 64.

We also observe that that this statutory exception provided

in Code § 26-12.2 is reflective of the more limited duties of an

administrator appointed solely for the purpose of bringing a

wrongful death action. Unlike the proceeds from a personal

injury survival action, sums recovered in a wrongful death

action generally are awarded directly to a decedent’s

beneficiaries, are unaffected by the decedent’s debts and

liabilities, and do not pass through the decedent’s estate. See

Bagley v. Weaver, 211 Va. 779, 782, 180 S.E.2d 686, 689 (1971);

Cassady v. Martin, 220 Va. 1093, 1101, 266 S.E.2d 104, 108

(1980). Therefore, as provided by Code § 26-12.2, an

administrator appointed for the sole purpose of bringing a

wrongful death claim involving designated beneficiaries is not

required to comply with inventory and settlement requirements

applicable to an administrator of an estate.

Contrary to Antisdel’s contention, our reading of these two

statutes does not force a premature election of remedies or

place any limitation on the ability of a duly-appointed

administrator to pursue all actions within the scope of his or

her appointment power. Thus, an administrator appointed for the

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purposes of filing both a wrongful death action and a personal

injury survival action may assert both causes of action and

plead them in the alternative. See Code §§ 8.01-272 and -281;

Centra Health, 277 Va. at 77-79, 670 S.E.2d at 717-18.

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.

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 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 Code

§ 8.01-50. The clerk’s appointment order accurately reflected

that declaration and, consistent with the declaration and

appointment order, the clerk exercised her authority to waive

the inventory and fees associated with a broader grant of

administrative authority. Therefore, Antisdel’s request for

appointment, her oath of fiduciary, and the appointment order

accurately reflected the events that transpired. Under these

facts, entry of the nunc pro tunc appointment order requested by

Antisdel improperly would have created a fiction, establishing

the granting of a fiduciary power that never existed.

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 Code

§ 8.01-50, and the clerk’s order was consistent with Antisdel’s

oath. Accordingly, we conclude that the circuit court did not

err in granting the defendants’ pleas in bar because Antisdel

lacked standing to bring the present action.

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 For these reasons, we will affirm the circuit court’s

judgment.

Affirmed.

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