Antisdel v. Ashby

688 S.E.2d 163, 279 Va. 42
CourtSupreme Court of Virginia
DecidedJanuary 15, 2010
Docket082475
StatusPublished
Cited by49 cases

This text of 688 S.E.2d 163 (Antisdel v. Ashby) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Antisdel v. Ashby, 688 S.E.2d 163, 279 Va. 42 (Va. 2010).

Opinion

688 S.E.2d 163 (2010)

Bea ANTISDEL, as Personal Representative of Peter Antisdel, Deceased
v.
Jeffrey A. ASHBY, M.D., et al.

Record No. 082475.

Supreme Court of Virginia.

January 15, 2010.

*164 Michele A. Mulligan (Nathan A. Colarusso, Michael Melkersen, McSweeney, Crump, Childress & Temple, on briefs), Richmond, for appellant.

Colleen M. Gentile (Sands Anderson Marks & Miller, on brief), McLean, for appellees Harrisonburg Family Practice, Jeffrey A. Ashby, M.D., and Michael J. Syptak, M.D.

Robert M. Doherty (Paul C. Kuhnel, Wooten & Hart, Roanoke, on brief), for appellees Jerri A. Alexiou, M.D., and Harrisonburg Dermatology.

Present: All the Justices.

*165 OPINION BY Justice BARBARA MILANO KEENAN.

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 defendants[1] 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 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, 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 *166 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 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,

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Cite This Page — Counsel Stack

Bluebook (online)
688 S.E.2d 163, 279 Va. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antisdel-v-ashby-va-2010.