PRESENT: All of the Justices
REBECCA FOWLER, ADMINISTRATOR OF
THE ESTATE OF ROBERT FOWLER
OPINION BY
v. Record No. 022260 JUSTICE DONALD W. LEMONS
JUNE 6, 2003
WINCHESTER MEDICAL CENTER, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge
In this appeal, we consider whether a suit for wrongful
death brought by a nonresident party who, at the time the suit
was filed, was not qualified as a personal representative in
Virginia or any other state, tolled the statute of limitations
while the suit was pending.
I. Facts and Proceedings Below
Robert Fowler (the “decedent”) died intestate on December
24, 1999. His wife, Rebecca Fowler (“Fowler”), was appointed
administrator of the decedent’s estate by the Berkeley County
Commission of West Virginia on March 9, 2000. By Final
Settlement Order dated October 2, 2000, the Berkeley County
Commission approved the settlement of the decedent’s estate and
notified Fowler that “the order conferring authority is
terminated, the bond released and the estate closed.”
On December 21, 2001, Fowler filed a motion for judgment
for wrongful death in the Circuit Court of the City of
Winchester alleging medical malpractice against ten health care
providers who cared for the decedent before his death. When the
suit was filed, Fowler had not qualified as the decedent’s
personal representative in Virginia. As a result of pretrial
motions and orders, the number of defendants was narrowed to
those health care providers before the Court in this appeal.
The remaining defendants filed various motions to dismiss and
demurrers alleging, among other things, that Fowler had no
standing to maintain the cause of action, that the pendency of
the purported action did not toll the statute of limitations,
that the statute of limitations had expired, and that the motion
for judgment should be dismissed with prejudice. Fowler sought
to nonsuit the action against all remaining defendants; however,
the remaining defendants objected because of a pending cross-
claim for contribution.
The trial court denied Fowler’s motion for nonsuit and
granted defendants’ motions to dismiss with prejudice. Fowler
appeals the adverse judgment of the trial court.
II. Analysis
On appeal, Fowler concedes that she does not have standing
to maintain her suit. Nonetheless, she argues that the trial
court erred by dismissing the motion for judgment with prejudice
because she maintains that she is a “real party in interest” as
defined in McDaniel v. North Carolina Pulp Co., 198 Va. 612, 95
S.E.2d 201 (1956), and is entitled to the tolling provision of
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Code § 8.01-244(B). Fowler contends that she has the right to
properly qualify as a personal representative under Code § 26-59
and refile the suit within “the remaining period of such two
years as if such former action had not been instituted.” Code
§ 8.01-244(B). 1 The material facts are not in dispute. We
review this question of law utilizing a de novo standard.
Sheets v. Castle, 263 Va. 407, 410, 559 S.E.2d 616, 618 (2002).
The Virginia Wrongful Death Act, Title 8.01, Ch. 3, Art. 5
of the Code of Virginia provides in part that such an action
“shall be brought by and in the name of the personal
representative of such deceased person within the time limits
specified in [Code] § 8.01-244.” Code § 8.01-50(B). The
statute governing the period of limitations for such an action
provides the following in part:
Every action under § 8.01-50 shall be
brought by the personal representative of the
decedent within two years after the death of the
injured person. If any such action is brought
within such period of two years after such
person’s death and for any cause abates or is
dismissed without determining the merits of such
action, the time such action is pending shall not
be counted as any part of such period of two
1
In the remaining assignment of error, Fowler maintains
that the trial court erred by granting the health care
providers’ motions to dismiss because the statute of limitations
had not expired. She argues that Code § 8.01-229(B) and our
opinion in Douglas v. Chesterfield County Police Dep’t, 251 Va.
363, 467 S.E.2d 474 (1996) provide for tolling of the statute of
limitations under the facts of this case. Fowler did not raise
this argument in the trial court and we will not consider it for
the first time on appeal. Rule 5:25.
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years and another action may be brought within
the remaining period of such two years as if such
former action had not been instituted. . . .
Code § 8.01-244(B).
The decedent died on December 24, 1999. Fowler filed her
wrongful death action in the trial court on December 21, 2001.
At that time she had not qualified as the personal
representative of the decedent in Virginia and her prior
qualification in West Virginia had been terminated. Fowler
incorrectly represented herself in the pleadings as
“Administrator of the Estate of Robert Fowler, Deceased.” After
the expiration of more than two years from the decedent’s death,
the health care providers moved the trial court to dismiss the
action with prejudice.
Fowler conceded that she had not complied with requirements
of Code § 26-59 concerning the qualification of a nonresident of
the Commonwealth to serve as a personal representative of the
decedent. We have previously held that a motion for judgment
filed by one who did not have standing to sue did not toll the
statute of limitations. See Harbour Gate Owners’ Assoc. v.
Berg, 232 Va. 98, 107, 348 S.E.2d 252, 258 (1986). Nonetheless,
Fowler maintained that she was a “real party in interest”
pursuant to McDaniel and that her suit tolled the statute of
limitations which would allow her to properly qualify and refile
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the suit. The trial court denied Fowler’s motion for nonsuit
and granted the motions to dismiss with prejudice. 2
McDaniel involved a wrongful death suit brought in Virginia
by John R. McDaniel, Jr. (“McDaniel”), the father of the
decedent. McDaniel was qualified as the decedent’s personal
representative in the state of Nevada, but not in Virginia.
McDaniel, 198 Va. at 613, 95 S.E.2d at 202. The trial court
granted defendants’ motion for summary judgment because McDaniel
was not qualified as the decedent’s personal representative in
Virginia; consequently, he had no standing. Id. at 614, 95
S.E.2d at 203.
Four months later, McDaniel filed another wrongful death
suit in Virginia based on the same cause of action. In the
second suit, McDaniel was joined by a co-plaintiff, Mary M.
Persinger (“Persinger”), who was a resident of Virginia and
recently had qualified as the decedent’s personal representative
in Virginia. The trial court dismissed the second suit holding
that the statute of limitations had expired. On appeal, we
considered the question “whether the action commenced on
September 22, 1953, by [McDaniel], as the Nevada administrator
of [the decedent], and concluded on December 10, 1954, was such
2
Fowler moved for a nonsuit; however, the trial court
denied the motion because a cross-claim was pending. See Code
§ 8.01-380(D) (Cum. Supp. 2002). Fowler does not assign error
to the trial court’s denial of her motion for nonsuit.
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an action, the commencement of which tolled the [statute of
limitations].” Id.
We reversed the judgment of the trial court, holding that
the statute of limitations was tolled by the filing of the first
suit. We posited the question “whether the plaintiffs in the
two actions are substantially the same parties,” Id. at 619, 95
S.E.2d at 206, and held that McDaniel was a “real party in
interest” because he was qualified as the decedent’s personal
representative in Nevada when the second suit was filed. Id.
We further noted the following:
[McDaniel] could have sued in Nevada for the same
cause of action, if jurisdiction of the
defendants could have there been acquired. He
could have arranged with the defendants a
settlement of the claim in controversy and his
receipt would have been an acquittance of
liability. Upon the qualification of [Persinger]
as administratrix in Virginia, he continued as a
real party in interest, and was entitled to have
an accounting from her. [McDaniel and Persinger]
. . . were substantially the same plaintiff as
the plaintiff in the first action, suing in the
same right. Only the name of a co-plaintiff was
added in the second action. Whatever the name of
the plaintiff, the real party in interest
remained the same; the suit was instituted in the
same right; and the cause of action was the same.
Id.
The focal point of our analysis in McDaniel was that
McDaniel was a qualified personal representative of the
decedent’s estate, albeit in Nevada rather than Virginia, when
the first suit was filed. By contrast, Fowler was not a
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qualified personal representative anywhere. Although she had
previously qualified as the decedent’s personal representative
in West Virginia, her qualification there was terminated by the
Final Settlement Order of the Berkeley County Commission on
October 2, 2000. In contrast to the posture of the case in
McDaniel, when Fowler filed this wrongful death suit in
Virginia, she was not qualified as the decedent’s personal
representative in Virginia or any other state; consequently, she
will never be able to file a new suit as a qualified personal
representative and claim that she is “substantially the same
party” as the plaintiff in the first suit.
III. Conclusion
Fowler concedes she does not have standing to maintain this
action for wrongful death of the decedent. Her circumstances
are distinguished from McDaniel and she cannot obtain the
benefit of tolling of the statute of limitations during the
pendency of the suit. For the reasons stated, we hold that the
trial court did not err in dismissing Fowler’s Motion for
Judgment with prejudice. We will affirm the judgment of the
trial court.
Affirmed.
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