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 crossclaim 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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