Brake v. Payne

Present: All the Justices

MARK BRAKE, ET AL.

v. Record No. 031948

KELLY PAYNE, PERSONAL REPRESENTATIVE
OF THE ESTATE OF EDUARDO CALZADA

C. SCOTT MILLER, ET AL.

v. Record No. 031949

KELLY PAYNE, PERSONAL REPRESENTATIVE
OF THE ESTATE OF EDUARDO CALZADA OPINION BY
JUSTICE CYNTHIA D.KINSER
SHEILA COLEY June 10, 2004

v. Record No. 031953

KELLY PAYNE, PERSONAL REPRESENTATIVE
OF THE ESTATE OF EDUARDO CALZADA

MARK GILLESPIE

v. Record No. 031954

KELLY PAYNE, PERSONAL REPRESENTATIVE
OF THE ESTATE OF EDUARDO CALZADA

From the Circuit Court of the City of Charlottesville
Donald E. Kent, Judge Designate

In these appeals, we once again address a plaintiff’s

right to suffer a nonsuit. The question is: When a

plaintiff who lacks standing to bring an action suffers a

nonsuit, does that nonsuit then impair a proper plaintiff’s

absolute right to a first nonsuit in a subsequently filed

new action? We answer that question in the negative

because the plaintiff without standing and the proper
plaintiff are not suing in the same right. Thus, we will

affirm the circuit court’s judgment allowing a nonsuit in

the action brought by the proper plaintiff. However, we

will reverse the circuit court’s entry of that nonsuit

order nunc pro tunc.

MATERIAL FACTS AND PROCEEDINGS

Guadalupe Sias (“Sias”), as the parent and next of kin

of Eduardo Calzada (“Calzada”), filed a motion for judgment

in the Circuit Court of the City of Charlottesville (“the

First Action”), against Kelly Harrison (“Harrison”), an

officer with the City of Charlottesville Police Department,

alleging claims for assault and battery, and false

imprisonment arising out of Calzada’s arrest on October 24,

1998. Harrison filed a demurrer, asserting that the First

Action was improperly brought in the name of Calzada by his

parent and next of kin. According to Harrison, the action

should have been filed by an executor or administrator of

the estate of Calzada, who was deceased. The circuit court

sustained the demurrer but granted Sias leave to amend the

motion for judgment to substitute a proper plaintiff.

Instead of amending the motion for judgment, Sias elected

to suffer a voluntary nonsuit of the First Action. The

circuit court entered an order nonsuiting that action.

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 Subsequently, Kelly Payne (“Payne”), personal

representative of the estate of Calzada, filed a motion for

judgment in the Circuit Court of the City of

Charlottesville (“the Second Action”), naming as defendants

Harrison; Mark Brake, an officer with the City of

Charlottesville Police Department; Mark Gillespie, an

officer “for the County of Albemarle;” Cheryl A. Thompson,

a magistrate for the 16th Judicial District; and numerous

individuals and entities associated in some capacity with

the Albemarle-Charlottesville Regional Jail (the “Jail

Defendants”).1 In addition to the claims for assault and

battery, and false imprisonment asserted in the First

Action, Payne stated claims alleging gross negligence for

conspiring to deprive and depriving Calzada of necessary

medical attention, violation of his constitutional rights

against unreasonable seizure and loss of liberty without

due process of law, use of unnecessary force amounting to

an unreasonable search and seizure, commitment to jail for

a non-incarcerable offense, and wrongful death.

1
The Jail Defendants were C. Scott Miller, Frank
Johnson, Michael Fehl, Christopher A. Bibb, Keith Bazemore,
Fred Kirschnick, Gerald [Patrick] Kinlaw, Eddie Shifflett,
Gary P. Ferland, Asiberia Igbari, Jerome Hill, Phillip
Barfield, Billy Bingler, John Woodson, Sheila Coley, John
R. Isom, Robert Beatty, Albemarle-Charlottesville Regional
Jail Authority, Albemarle-Charlottesville Regional Jail
Board, and Unknown Named Agents of the Regional Jail and
Jail Authority.

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 Payne did not serve process in the Second Action on

any of the defendants. On October 22, 2001, which was one

day before the expiration of the twelve-month period after

commencement of the Second Action in which timely process

should have been served pursuant to the provisions of Code

§ 8.01-275.1 and Rule 3:3(c), Payne filed a “Notice of

Voluntary Non-Suit.” Although Payne submitted a proposed

nonsuit order to the circuit court, she did not file a

praecipe or otherwise schedule a hearing for entry of the

nonsuit order. Consequently, the circuit court never

entered the order submitted by Payne.

Despite the fact that the Second Action remained open

on the court’s docket, Payne subsequently filed a third

motion for judgment in the Circuit Court of the City of

Charlottesville (“the Third Action”) on April 19, 2002.

Payne asserted basically the same factual allegations and

claims as she had stated in the Second Action and named

primarily the same individuals as defendants. This time,

however, Payne effected service of process on some of the

defendants. The Third Action was subsequently removed to

the United States District Court for the Western District

of Virginia.

After Payne filed the Third Action, Gillespie and most

of the Jail Defendants filed notices of special appearance

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and moved the court to dismiss the Second Action with

prejudice because Payne had failed to serve process timely

in the Second Action in accordance with the provisions of

Code § 8.01-275.1 and Rule 3:3(c). They also objected to

Payne’s requested nonsuit of the Second Action. Payne then

filed a notice in the circuit court, stating her intention

to tender the proposed order of nonsuit in the Second

Action to the court.

After hearing oral argument on April 16, 2003 with

respect to Payne’s request for a nonsuit and the

defendants’ objections,2 the circuit court concluded that

that the Second Action was “a separate and distinct cause

of action or claim” from the First Action, and that Payne’s

request for a nonsuit was thus a request for “a first

nonsuit and not a second nonsuit.” The court further

determined that the order of nonsuit should be entered nunc

pro tunc to October 22, 2001, the date Payne originally

submitted the proposed order to the court. The circuit

court subsequently entered the order of nonsuit as

indicated. These appeals followed, which were consolidated

for purposes of oral argument and this opinion.

ISSUES AND ANALYSIS

2
Counsel for Brake and Harrison, as well as counsel
for Coley, also appeared at the hearing and objected to the
proposed nonsuit order.

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 The various defendants-appellants raise three issues:

(1) whether the circuit court erred in allowing Payne to

nonsuit the Second Action; (2) whether the circuit court

erred in allowing Payne to suffer a second nonsuit with

respect to the defendants who were not served with service

of process within 12 months from the date of filing the

Second Action as required by Code § 8.01-275.1 and Rule

3:3(c); and (3) whether the circuit court erred by entering

the nonsuit order nunc pro tunc to October 22, 2001.3

With regard to the first issue, the dispositive

question is whether the nonsuit of the First Action by

Sias, who lacked standing to bring that action, in any

manner affected or impaired Payne’s right to a first

nonsuit of the Second Action pursuant to the provisions of

Code § 8.01-380(B). The defendants assert that, although

Sias was not qualified as the personal representative of

Calzada’s estate when she filed the First Action and thus

lacked standing to bring that action, she was nevertheless

the real party in interest in both the First Action and the

Second Action because she was Calzada’s mother and a

potential beneficiary under the Death by Wrongful Act

statute, specifically Code § 8.01-53. Payne, in contrast,

3
Coley did not raise the second issue in her appeal.

6
argues that, since “a new plaintiff may not be substituted

for an original plaintiff who lacked standing to bring the

[action],” Chesapeake House on the Bay, Inc. v. Virginia

Nat’l Bank, 231 Va. 440, 442-43, 344 S.E.2d 913, 915

(1986), Sias could not have substituted Payne as the

plaintiff in the First Action. Therefore, Payne contends

that, while the only remedy was to nonsuit the First Action

and to bring a new action in the name of a proper

plaintiff, id. at 443, 344 S.E.2d at 915, the First Action

was in effect a nullity and the nonsuit of that action

should not prejudice Payne’s right to suffer a nonsuit of

the Second Action under Code § 8.01-380(B). We agree with

Payne.

In Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131,

133, 580 S.E.2d 816, 816 (2003), Rebecca Fowler filed a

motion for judgment seeking damages for the wrongful death

of her husband. When Fowler filed the action, she was not

qualified as the decedent’s personal representative in

Virginia, and her appointment as the administrator of her

husband’s estate in West Virginia had terminated. Id. at

132-33, 580 S.E.2d at 816. Several defendants in that

action filed motions to dismiss and demurrers asserting

that Fowler lacked standing to maintain the wrongful death

action and that, therefore, the pendency of the action did

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not toll the statute of limitations. Id. at 133, 580

S.E.2d at 816.

Fowler conceded that she did not have standing to

maintain the action. Id., 580 S.E.2d at 817. However,

relying on McDaniel v. North Carolina Pulp Co., 198 Va.

612, 95 S.E.2d 201 (1956), she argued that she was a “real

party in interest” and was entitled to the benefit of the

tolling provision in Code § 8.01-244(B). 266 Va. at 133,

580 S.E.2d at 817. This Court disagreed.

Unlike the plaintiff in McDaniel who was qualified in

Nevada as the administrator of the decedent’s estate when

he filed a wrongful death action in Virginia, Fowler was

not qualified as her deceased husband’s personal

representative in Virginia or any other state when she

filed the wrongful death action. Id. at 136, 580 S.E.2d at

818. Thus, we concluded that Fowler would “never be able

to file a new suit as a qualified personal representative

and claim that she [was] ‘substantially the same party’ as

the plaintiff in the first suit.” Id. (quoting McDaniel,

198 Va. at 619, 95 S.E.2d at 206). Accordingly, she was

not a “real party in interest” and the pendency of her

action did not toll the statute of limitations. Id.; see

also Harbour Gate Owners’ Ass’n, Inc. v. Berg, 232 Va. 98,

107, 348 S.E.2d 252, 258 (1986) (an action filed by an

8
entity that lacked standing to sue did not toll the

applicable statute of limitations); Chesapeake House, 231

Va. at 442, 344 S.E.2d at 915 (same).

As a corollary principle, “a new plaintiff may not be

substituted for an original plaintiff who lacked standing

to bring the suit.” Chesapeake House, 231 Va. at 442-43,

344 S.E.2d at 915; accord Cook v. Radford Cmty. Hosp. Inc.,

260 Va. 443, 451, 536 S.E.2d 906, 910 (2000); see also

Norfolk Southern R.R. Co. v. Greenwich Corp., 122 Va. 631,

634, 95 S.E. 389, 390 (1918). “Such a substitution amounts

to the assertion of a new cause of action.” Wells v.

Lorcom House Condominiums’ Council of Co-Owners, 237 Va.

247, 254, 377 S.E.2d 381, 385 (1989). In that situation,

“the sole remedy is a nonsuit followed by a new action

brought in the name of a proper plaintiff.” Chesapeake

House, 231 Va. at 443, 344 S.E.2d at 915.

Contrary to the defendants’ argument, Sias was not a

real party in interest primarily for two reasons. First,

her status as a potential beneficiary under Code § 8.01-53

did not make her a real party in interest for purposes of

conferring standing to bring the First Action. Cf. Grinels

v. Legg, 208 Va. 63, 66, 155 S.E.2d 56, 59 (1967)

(executrix could, as an individual, be substituted as

plaintiff in the action brought by her as executrix because

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“the plaintiff was the real party in interest as the sole

distributee of any recovery”). The provisions of Code

§ 8.01-50(B) allow only the personal representative of the

deceased person to bring a wrongful death action. See Horn

v. Abernathy, 231 Va. 228, 237, 343 S.E.2d 318, 323 (1986)

(“Code § 8.01-50(B) vests the right of action in the

decedent’s personal representative”).

Second, Sias, like Fowler, was not qualified as the

personal representative of Calzada’s estate in Virginia or

any other state when she filed the First Action. Thus, she

could not have filed a new suit as a qualified personal

representative and claimed that she was “substantially the

same party.” See Fowler, 266 Va. at 136, 580 S.E.2d at

818. Stated differently, she could not have been

substantially the same party because she would not have

been

suing in the same right, as where the second suit
is by the personal representative of plaintiff in
the first suit; where the first suit was by the
original administrator, and the second by his
successor; where the first suit was by the
original trustee, and the second by his successor
in trust.

McDaniel, 198 Va. at 617, 95 S.E.2d at 205 (quoting 54

C.J.S., § 293 at 362). In contrast to Sias, the Nevada

administrator in McDaniel was a “real party in interest”

because he, along with the administratrix in Virginia,

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“were substantially the same plaintiff as the plaintiff in

the first action, suing in the same right.” Id. at 619, 95

S.E.2d at 206.

Thus, we hold that Sias and Payne were not

“substantially the same parties.” Since Sias did not have

standing to bring the wrongful death action, she was not

suing in the same right as Payne in the Second Action.

Accordingly, Sias’ nonsuit of the First Action did not

impair Payne’s absolute right to one nonsuit of the Second

Action under the provisions of Code § 8.01-380(B). The

nonsuit of the Second Action was a first nonsuit, and the

circuit court therefore did not err in allowing Payne to

suffer a nonsuit of that action.4

The only remaining issue is whether the circuit court

erred in entering the nonsuit order in the Second Action

4
In light of the conclusion that the nonsuit of the
Second Action was a first nonsuit due to Sias’ lack of
standing to bring the First Action, we do not need to
address the defendants’ argument that Payne’s request to
nonsuit the Second Action must be considered a second
nonsuit because the “cause of action” asserted in both
actions arose out of the same set of operative facts,
namely the events surrounding Calzada’s seizure, arrest,
incarceration, and subsequent death. Additionally, our
conclusion on the first issue renders moot the second issue
raised on appeal, that the circuit court erred in allowing
a second nonsuit as to those defendants who had not been
served with process within 12 months from the date of
filing the Second Action.

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nunc pro tunc to October 22, 2001. We have previously

explained the purpose of a nunc pro tunc order:

[N]unc pro tunc entry should not be made to
supply an error of the court or to show what the
court should have done as distinguished from what
actually occurred. . . .

More specifically, the purpose of a nunc pro
tunc entry is to correct mistakes of the clerk or
other court officials, or to settle defects or
omissions in the record so as to make the record
show what actually took place. It is not the
function of such entry by a fiction to antedate
the actual performance of an act which never
occurred, to represent an event as occurring at a
date prior to the time of the actual event, “or
to make the record show that which never
existed.”

Council v. Commonwealth, 198 Va. 288, 292-93, 94 S.E.2d

245, 248 (1956) (quoting 21 C.J.S., Courts, § 227(a) at

422, 423); accord Harris v. Commonwealth, 222 Va. 205, 209,

279 S.E.2d 395, 398 (1981).

In the present case, Payne submitted a proposed

nonsuit order to the circuit court on October 22, 2001, but

she did not take any steps at that time to bring the matter

on for a hearing to enter the order. Consequently, the

circuit court did not hear the motion for a nonsuit or

consider the proposed order until April 16, 2003. Thus,

the court’s nunc pro tunc entry of the nonsuit order

created a fiction because the court was antedating the

performance of an act that did not take place on October

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22, 2001. A nunc pro tunc order “may be used to make the

record speak the truth, but not to make it speak what had

not been spoken, even though it ought to have been spoken.”

Gandy v. County of Elizabeth City, 179 Va. 340, 346, 19

S.E.2d 97, 100 (1942). Thus, we hold that the circuit

court erred in entering the nonsuit order nunc pro tunc to

October 22, 2001.

CONCLUSION

In summary, Payne’s nonsuit of the Second Action was a

first nonsuit because Sias lacked standing to bring the

First Action. Those two parties were not suing in the same

right. Accordingly, the circuit court did not err in

allowing Payne to nonsuit the Second Action as a matter of

right, but the court did err by entering that nonsuit order

nunc pro tunc. Therefore, we will affirm the circuit

court’s judgment in part, reverse in part, and remand for

proper entry of a nonsuit order in the Second Action in

accordance with this opinion.

Affirmed in part,
reversed in part,
and remanded.

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