Present: All the Justices
ALTA R. COOK, ET AL.
v. Record No. 992710 OPINION BY JUSTICE ELIZABETH B. LACY
November 3, 2000
RADFORD COMMUNITY HOSPITAL,
INCORPORATED, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RADFORD
Duane E. Mink, Judge
In this appeal, we consider whether Code § 37.1-141
precludes the filing of an action by a person adjudged
incapacitated and requires such action to be brought by the
guardian of the incapacitated person.
On December 20, 1995, Alta R. Cook (Cook) was declared
incapacitated pursuant to former Code § 37.1-132. 1 Cook's
husband, Donnie R. Cook, was appointed as her guardian. On
November 24, 1997, Cook, in her own name, filed a medical
malpractice action against Radford Community Hospital,
Incorporated, and Drs. Mark Todd and Robert C. Solomon for
injuries she alleged resulted from treatment she received
while a patient at the Hospital from November 24, 1995 to
January 17, 1996. She filed an amended motion for judgment in
November 1998. The defendants filed a joint motion to dismiss
arguing that, because a guardian had been appointed for Cook,
Code § 37.1-141 required that her guardian prosecute the
action. Agreeing that Cook did not have standing to sue in
her own right, the trial court determined that Cook was not
entitled to amend her pleadings under either the misnomer
statute, Code § 8.01-6, or the misjoinder statute, Code
§ 8.01-5, and dismissed Cook's motion for judgment. Cook
appeals from that judgment.
Cook acknowledges that pursuant to Code § 37.1-141, a
fiduciary "should prosecute actions for his ward."
Nevertheless, she maintains that the failure to comply with
the statute does not preclude pleading amendments to cure any
defects.
Code § 37.1-141 provides:
All actions or suits to which the ward is a
party at the time of qualification of the
fiduciary and all such actions or suits
subsequently instituted shall, subject to any
conditions or limitations set forth in the
order appointing him, be prosecuted or
defended, as the case may be, by the fiduciary,
after ten days' notice of the pendency thereof,
which notice shall be given by the clerk of the
court in which the same are pending.
The use of the word "shall" indicates that prosecution of a
ward's cause of action by the fiduciary, if one has been
1
Code § 37.1-132, addressing incapacity, was repealed by
Acts 1997, c. 921, effective January 1, 1998. For the current
version of the statute, see Code § 37.1-134.13.
2
appointed, is mandatory. 2 Failure to comply with a mandatory
condition can preclude curative amendments.
"Shall," however, does not always impose a mandatory
condition. It has been construed as permissive or directory
rather than mandatory depending on the subject matter and
context in which it is used. White v. Morano, 249 Va. 27, 32,
452 S.E.2d 856, 859 (1995); Fox v. Custis, 236 Va. 69, 77, 372
S.E.2d 373, 377 (1988). To determine whether "shall" as used
in Code § 37.1-141 is mandatory or permissive, we will review
the history of the statute and relevant case law.
No statute specifically required that claims of a ward be
prosecuted by a fiduciary until 1950. However, as early as
1872, this Court in Bird's Committee v. Bird, 62 Va. (21
Gratt.) 712 (1872), stated that "when there is a committee,
. . . every suit respecting the person or estate of the
lunatic must be instituted in his name." Id. at 716. In that
case, a person of unsound mind filed an action by next friend
against her former committee over the settlement of accounts.
Because of the factual situation involved, the Court in Bird's
Committee allowed the case to proceed by carving out a narrow
2
The statutes and case law addressed in this opinion use
the terms guardian, committee, and fiduciary depending upon
the ward's particular disability. For purposes of construing
Code § 37.1-141, unless the context requires otherwise, we use
the general term "fiduciary" to refer to the person who has
been charged with the care of a ward.
3
exception to the general rule: "[W]herever the interests of
the committee clash with those of the lunatic, or when no
committee has ever been appointed, the lunatic should be
permitted to institute a suit in his or her own name, with
some responsible person named as next friend and approved by
the court." Id. at 718.
In Cole's Committee v. Cole's Adm'r, 69 Va. (28 Gratt.)
365 (1877), a proceeding instituted in the name of a person of
unsound mind was challenged because it was not brought by the
fiduciary. Again, this Court allowed the action to proceed,
finding that the action was "substantially a suit by the
committee" because it was styled in the name of the person of
unsound mind, suing "by his next friend and committee." Id.
at 370-71.
By 1934, "the established rule" was that suits against
persons declared insane must be brought in the name of the
committee and that adults " 'who are incapable of acting for
themselves, though neither idiot nor lunatic, have been
permitted to sue by their next friend.' " Counts v. Counts,
161 Va. 768, 777, 172 S.E. 248, 251 (1934). This rule was
premised on the policy that an " 'insane person, whether
plaintiff or defendant, cannot appear in these judicial
proceedings alone and unprotected; he must sue or defend by
4
guardian, guardian ad litem, or committee.' " 161 Va. at 775,
172 S.E. at 250.
In 1950, the General Assembly enacted Code § 37-149, the
predecessor to Code § 37.1-141, directing that actions or
suits to which a ward is a party "shall" be prosecuted or
defended by the fiduciary once one has qualified. By this
statute, the General Assembly adopted the established rule
recognized in Bird's Committee, Cole's Committee, and Counts.
That rule was not permissive; it was mandatory.
The conclusion that Code § 37.1-141 is mandatory also
finds support when that section is contrasted with Code
§ 37.1-139 and its predecessors. Well before the enactment of
Code § 37.1-141, the predecessors of Code § 37.1-139 stated
that a fiduciary "may sue and be sued" with respect to claims
for or against the ward. See Code 1950, § 37-147; Code 1919,
§ 1054; Code 1887, § 1702; Code 1849, tit. 24, ch. 85 § 45.
By using the word "shall" rather than "may" in the new
statute, the General Assembly distinguished the new section
from the long-standing provisions recited in current Code
§ 37.1-139 as well as enacting into statute the mandatory
common law rule adopted in Bird's Committee, Cole's Committee,
and Counts.
Cook advances a number of arguments in support of her
position that a suit which does not comply with the provisions
5
of Code § 37.1-141 is nevertheless valid. First, she argues
that the difference between a declaration of incapacity and of
incompetency is a "major and material" difference which
requires a different outcome in this case. We agree that
incapacity and incompetency represent different disabilities,
but that difference is not material for the purposes of this
suit. The statute at issue in this case does not distinguish
between the types of disabilities, but applies when any
fiduciary has been appointed for a ward, regardless of the
particular disability suffered by the ward. Therefore,
whether the disability is incompetency or incapacity, the
issue remains the same if a fiduciary has been appointed.
Cook next argues that the policy underlying Code § 8.01-9
requires that she be granted leave to amend her petition in
this case. Code § 8.01-9 requires the appointment of a
guardian ad litem for a person under a disability who is named
as a defendant in a suit unless the person under a disability
is represented by counsel. Code § 8.01-9 further provides
that it is the duty of the court to "see that the interest of
[such] defendant is so represented and protected." Cook
posits that this section recognizes that a suit filed against
a person with disabilities rather than against the guardian is
valid and curative amendments can be made if necessary. Based
on this premise, Cook reasons that the converse must also be
6
true; that is, a suit filed by a person under a disability is
also valid and subject to curative action if needed to protect
and represent the interest of such person. We disagree.
Code § 8.01-9 is inapposite to the issue in this case.
That section is a general law applying to all persons under a
disability, which includes minors, alcoholics, drug addicts,
incarcerated felons, as well as incapacitated persons. The
statute is not concerned with the capacity of a person under a
disability to sue but with the protection of such person when
named as a defendant in a lawsuit. One who institutes
litigation is in a posture completely different than one
against whom suit is filed. The filing of a lawsuit is an
affirmative act on the part of a plaintiff and does not carry
with it the need for the type of court-initiated protection
which may exist when a person with a disability is required to
defend himself in litigation that he did not instigate,
particularly if such person does not have a fiduciary. The
provisions of Code § 8.01-9 do not provide any basis for
concluding that a suit by a person under a disability who has
a duly appointed fiduciary is valid.
Finally, Cook cites a number of cases decided by this
Court as examples of valid litigation filed by a person under
a disability, all of which are distinguishable. None of the
7
cases construes Code § 37.1-141 and in no case had a fiduciary
been appointed for the person under a disability.
Dunn v. Terry, 216 Va. 234, 217 S.E.2d 849 (1975),
involved the application of former Code §§ 53-305 and -307. 3
Former Code § 53-305 provided for the appointment of a
committee for a convict. Former Code § 53-307 provided that
all actions or suits to which a convict was a party "shall be
prosecuted or defended" by "such committee," language which is
very similar to Code § 37.1-141 at issue here.
Dunn, a convict, sought to quash a garnishment summons
issued in connection with civil litigation which began prior
to his incarceration. No committee had been appointed for
Dunn and he proceeded in his own name. The Court in Dunn
concluded that the appointment of a committee was neither
automatic nor required because former Code § 53-305 provided
that such appointment was made upon the "motion of any
interested party." As an interested party, the convict had
the ability to seek appointment of a committee. Conversely,
the Court in Dunn concluded, the convict could waive the
appointment of a committee by failing to make such a motion.
As no such motion was made by Dunn or any other interested
party, there was no "such committee" for purposes of former
Code § 53-307, and, therefore, the provisions of that section
8
requiring "such committee" to prosecute or defend actions
involving a convict were inapplicable. Thus, the Court in
Dunn did not need to consider whether the use of the phrase
"shall prosecute or defend" as used in former Code § 53-307
was mandatory or permissive. See also Cross v. Sundin, 222
Va. 37, 278 S.E.2d 805 (1981). The rationale of Dunn, which
resulted in allowing a convict to maintain an action in his
own name rather than by his committee, is not applicable here
because of the statutory provision allowing waiver of a
committee in that case and the material factual difference
between the cases, that is, the absence of a previously
appointed fiduciary in Dunn and the presence of one in the
instant case.
Cook's reliance on Riddle v. Barksdale, 194 Va. 766, 75
S.E.2d 507 (1953), for the proposition that a minor's suit is
valid even though he did not sue by next friend is also
misplaced. In Riddle, a judgment in favor of a minor for
personal injuries was sustained even though the minor did not
sue by next friend because former Code § 8-487 provided that
no judgment should be "arrested or reversed" so long as the
minor appeared by an attorney and the judgment was in favor of
the minor and not to his prejudice. 194 Va. at 770, 75 S.E.2d
at 510.
3
Now codified as Code §§ 53.1-221 and –222.
9
Finally, Cook refers to two cases involving the ability
of a person under a disability to engage in actions with legal
significance such as executing a will or deed; Gilmer v.
Brown, 186 Va. 630, 44 S.E.2d 16 (1947), and Waddy v. Grimes,
154 Va. 615, 153 S.E. 807 (1930). The only act of legal
significance at issue in this case is the ability to file a
law suit. Whether Cook could execute a will or a deed while
the guardianship remains effective is not relevant to the
issue before us, and therefore these cases are inapposite.
For the reasons stated above, we conclude that if a
fiduciary has been appointed for a ward, Code § 37.1-141
requires that the fiduciary prosecute any suit to which the
ward is a party. In the absence of an exception, the ward
does not have standing to sue in his or her own name.
Based on this construction of Code § 37.1-141, the trial
court correctly refused to allow amendment of the pleadings to
add or substitute Cook's guardian as the plaintiff. Neither
Rule 1:8, relating to liberal leave to amend pleadings, nor
Code § 8.01-5, relating to misjoinder and nonjoinder of
parties, are applicable here. With regard to Rule 1:8, we
stated in The Chesapeake House on the Bay, Inc. v. Virginia
Nat'l Bank, 231 Va. 440, 442-43, 344 S.E.2d 913, 915 (1986):
[T]he foregoing rule [Rule 1:8] has always been
subject to the limitation that a new plaintiff
may not be substituted for an original plaintiff
10
who lacked standing to bring the suit. Statutes
relating to misjoinder and nonjoinder are not
applicable in such situations, and the sole
remedy is a nonsuit followed by a new action
brought in the name of a proper plaintiff.
As in Chesapeake House, the guardian here cannot be
substituted for Cook because Cook did not have standing to
bring the suit.
Likewise Code § 8.01-6 is not applicable here. That
statute permits amendment and relation back if the pleadings
contain a misnomer. A misnomer "arises when the right person
is incorrectly named, not where the wrong [person] is named."
Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 172 (1996).
In this case the "right person" was Cook's guardian. The
"right person" was not incorrectly named; the "wrong person,"
Cook, was named.
For the reasons stated, we will affirm the judgment of the
trial court.
Affirmed.
11