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.
2
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,
3
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
4
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
5
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
6
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
7
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
8
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
9
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.
10
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.
11
For these reasons, we will affirm the circuit court’s
judgment.
Affirmed.
12