PRESENT: All the Justices 

JOHNSTON MEMORIAL HOSPITAL, ET AL. 

 OPINION BY 

v. Record No. 081038 JUSTICE CYNTHIA D. KINSER 

 February 27, 2009 

WANDA BAZEMORE, ADMINISTRATRIX 

OF THE ESTATE OF DAVID GRAY BAZEMORE, DECEASED 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

C. Randall Lowe, Judge 

In this wrongful death action, the sole issue is whether a 

plaintiff claiming to be the administratrix of a decedent's 

estate, but who filed the action prior to qualifying as such, is 

entitled to a nonsuit as a matter of right under Code § 8.01-

380. Because the plaintiff was not a legal entity at the time 

she filed the action and therefore lacked standing to do so, the 

action is a nullity. Accordingly, no valid action was pending 

that could be nonsuited. We will therefore reverse the circuit 

court's judgment granting a nonsuit and denying the defendants' 

motions to abate.1

I. RELEVANT FACTS AND PROCEEDINGS2

David Gray Bazemore (decedent) died on March 14, 2005, 

while hospitalized at Johnston Memorial Hospital (the Hospital). 

 1

 Pursuant to Code § 8.01-276, the General Assembly 

abolished "pleas in abatement." In this opinion, we will 

nevertheless refer to the pleading as a motion to abate since 

that is the caption used by the defendants. 

2

 Because the circuit court decided this case on written 

motions without an evidentiary hearing, we will summarize the 

facts as alleged in the pleadings. See Parker-Smith v. Sto 

Corp., 262 Va. 432, 435, 551 S.E.2d 615, 616 (2001). 
On March 9, 2007, a complaint was filed in the circuit court, 

naming as the plaintiff "Wanda Bazemore, Administratrix for the 

Estate of David Gray Bazemore, Deceased." Wanda Bazemore, the 

decedent's wife, had not, however, qualified as administratrix 

of her husband's estate when she filed the complaint, naming as 

defendants the Hospital, Martin Monahan, M.D., and William 

Baker, M.D. 

In the complaint, Bazemore alleged that Dr. Monahan and Dr. 

Baker were negligent in their care and treatment of the decedent 

and that their negligence was a proximate cause of the 

decedent's injuries and death. Bazemore further claimed that 

the Hospital was not only vicariously liable for the doctors' 

alleged negligence but also directly negligent for failing to 

institute necessary procedures and protocols to ensure the 

decedent received appropriate medical care. Finally, Bazemore 

alleged the defendants committed an assault and battery on the 

decedent's person. 

Each defendant filed a motion to abate the action and 

strike it from the docket. Relying on Code § 8.01-50(B), which 

states, "Every [wrongful death action] shall be brought by and 

in the name of the personal representative of such deceased 

person within the time limits," they claimed Bazemore had never 

qualified as the personal representative of the decedent's 

estate and she, therefore, lacked standing to file the action. 

2 
Thus, according to the defendants, the action was a nullity and 

should be dismissed with prejudice. 

Wanda Bazemore qualified as administratrix of the 

decedent's estate on August 22, 2007. She subsequently filed a 

motion to nonsuit the action. After a hearing on the parties' 

respective motions, the circuit court granted Bazemore's motion 

to nonsuit and denied the defendants' motions to abate the 

action. 

In a letter opinion, the circuit court concluded that Code 

§ 8.01-380 required the court to grant the nonsuit as a matter 

of right. Quoting the decision in Nash v. Jewell, 227 Va. 230, 

237, 315 S.E.2d 825, 829 (1984), the circuit court stated that a 

" '[p]laintiff has an absolute right to one non-suit. The 

election is his and if he insists upon taking the non-suit 

within the limitations imposed by the statute, neither the trial 

court nor opposing counsel can prevent him from doing so.' " 

The court further stated that since Bazemore exercised the right 

to a nonsuit, it could not consider the issues raised in the 

motions to abate. 

On appeal, the defendants assign error to the circuit 

court's denying the motions to abate and granting Bazemore's 

motion to nonsuit. They claim Bazemore lacked standing to file 

the action because she was not the decedent's qualified personal 

representative, thereby rendering the action a nullity. Because 

3 
the assigned error presents only a question of law, we will 

review the circuit court's ruling de novo. Sheets v. Castle, 

263 Va. 407, 410, 559 S.E.2d 616, 618 (2002). 

II. ANALYSIS 

A wrongful death action may only "be brought by and in the 

name of the personal representative of such deceased person." 

Code § 8.01-50(B). The action "is a right of action to enforce 

a cause of action, both created by statute in derogation of the 

common law." Horn v. Abernathy, 231 Va. 228, 237, 343 S.E.2d 

318, 323 (1986) (citations omitted). A wrongful death action is 

not an action "personal to the personal representative"; rather, 

the personal representative, as plaintiff, "is merely a 

surrogate for the beneficiaries of the cause of action named in 

Code § 8.01-53." Id.; accord Kone v. Wilson, 272 Va. 59, 62, 

630 S.E.2d 744, 746 (2006); Wilson v. Whittaker, 207 Va. 1032, 

1036, 154 S.E.2d 124, 127-28 (1967). 

Citing the decisions in Harmon v. Sadjadi, 273 Va. 184, 639 

S.E.2d 294 (2007), Braddock, L.C. v. Board of Supervisors of 

Loudoun County, 268 Va. 420, 601 S.E.2d 552 (2004), Brake v. 

Payne, 268 Va. 92, 597 S.E.2d 59 (2004), and Fowler v. 

Winchester Medical Center, Inc., 266 Va. 131, 580 S.E.2d 816 

(2003), the defendants argue that because Bazemore failed to 

qualify as administratrix of the decedent's estate prior to 

filing the wrongful death action, she lacked standing to do so. 

4 
Thus, the defendants assert the action is a nullity. Based on 

our decision in Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429 

(2005), the defendants contend the action cannot be nonsuited 

since it was a nullity. 

In Fowler, as in this case, the plaintiff incorrectly 

characterized herself as the personal representative of the 

decedent's estate. 266 Va. at 134, 580 S.E.2d at 817. The 

plaintiff there also conceded she lacked standing to file a 

wrongful death action. Id. at 133, 580 S.E.2d at 817. 

Rejecting the argument that she was, nevertheless, a "real party 

in interest," we held that, because she lacked standing, her 

filing of the action did not toll the statute of limitations. 

Id. at 134–36, 580 S.E.2d at 817–18. In other words, the action 

had no legal effect. 

More recently in Harmon, we specifically stated, "Our 

jurisprudence is clear that when a party without standing brings 

a legal action, the action so instituted is, in effect, a legal 

nullity." 273 Va. at 193, 639 S.E.2d at 299. There, a 

decedent's surviving spouse qualified as the personal 

representative of the decedent's estate in West Virginia and 

then filed a motion for judgment in Virginia, acting in her 

capacity as the personal representative qualified in West 

Virginia. Id. at 187, 639 S.E.2d at 295. She had not, however, 

qualified as the decedent's personal representative in Virginia 

5 
at that time. Id. The personal representative nonsuited the 

action, qualified as the personal representative in Virginia 

after the administration of the decedent's estate in West 

Virginia was closed, and filed a second motion for judgment in 

her capacity as the personal representative qualified in 

Virginia. Id. The Court held that the surviving spouse, "as a 

foreign personal representative not qualified in Virginia, had 

no legal standing to file the [first] motion for judgment." Id.

at 198, 639 S.E.2d at 301-02. Thus, the first "motion for 

judgment had no legal effect and, as a nullity, could not act to 

toll the running" of the applicable statute of limitations. Id.

at 198, 639 S.E.2d at 302; accord Braddock, 268 Va. at 426, 601 

S.E.2d at 555 (holding that a case brought by a party who lacked 

standing "was therefore a 'nullity' that could not be 

resurrected by the addition of parties" after the expiration of 

the statutory limitation period). 

Bazemore concedes that she filed this action as 

administratrix of the decedent's estate prior to qualifying as 

such. Because Bazemore had not qualified as the personal 

representative of the decedent's estate at the time the action 

was filed, the named plaintiff in this case, "Wanda Bazemore, 

Administratrix of the Estate of David Gray Bazemore, Deceased," 

was not a legal entity at that time. See Bolling v. D'Amato, 

259 Va. 299, 303-04, 526 S.E.2d 257, 259 (2000) (holding that 

6 
until a personal representative is appointed for a decedent, the 

decedent's personal estate is without an owner). Since only the 

personal representative of a decedent's estate may bring an 

action for wrongful death, see Code § 8.01-50(B), and the named 

plaintiff in this action was not a legal entity at the time the 

action was filed, the complaint had no legal effect, as the 

named plaintiff lacked legal standing to file the action. See

Harmon, 273 Va. at 198, 639 S.E.2d at 301–02. The action was 

therefore a nullity. Id. 

Nonetheless, relying on the decision in Nash, Bazemore 

contends she had an "unqualified right" to a nonsuit, which she 

asserts is "designed to provide a remedy to the Plaintiff for 

technical errors such as misjoinder and lack of standing." We 

disagree. 

Although Code § 8.01-380(B) grants one nonsuit "as a matter 

of right," only a validly pending proceeding can be nonsuited. 

See Nerri, 270 Va. at 31, 613 S.E.2d at 430 (holding that 

because a "pleading was invalid and had no legal effect[,] no 

valid proceeding was pending which could be non-suited"). It is 

correct, as Bazemore points out, that the pleading at issue in 

Nerri was invalid and without legal effect because it had been 

signed by an attorney whose license to practice law in the 

Commonwealth had been administratively suspended by the Virginia 

State Bar. Id. at 29, 613 S.E.2d at 430. The reason why an 

7 
action is without legal effect, however, is of no consequence. 

If an action is a nullity, regardless of the reason it is such, 

then no legal proceeding is pending that can be nonsuited. To 

hold otherwise could give an action that has no legal effect the 

benefit of the tolling provision and the six-month period in 

which to refile a nonsuited action provided in Code § 8.01-

229(E)(3). 

This conclusion is not inconsistent with the holding in 

Nash. Unlike the case before us, the action in Nash had been 

properly filed and was not a nullity or without legal effect. 

See 227 Va. at 232, 315 S.E.2d at 826. Unquestionably, "a 

plaintiff has an absolute right to one nonsuit," id. at 237, 315 

S.E.2d at 829, but that right presupposes the existence of a 

validly pending proceeding. See Nerri, 270 Va. at 31, 613 

S.E.2d at 430; see also Kone, 272 Va. at 63, 630 S.E.2d at 746 

(holding a wrongful death action filed pro se by an 

administrator of a decedent's estate who was not licensed to 

practice law in the Commonwealth was invalid and without legal 

effect, and "in the absence of a valid motion for judgment, 

there were no pleadings before the court that could have been 

amended"). 

Bazemore, however, insists that, in nonsuiting the action, 

she used the sole remedy available to her and, in doing so, 

followed the direction of the Court in The Chesapeake House on 

8 
the Bay, Inc. v. Virginia National Bank, 231 Va. 440, 443, 334 

S.E.2d 913, 915 (1986). The sole issue in Chesapeake House was 

whether a substitution of parties plaintiff was proper when the 

original plaintiff had no standing to bring the action. Id. at 

441, 344 S.E.2d at 914. The Court held that "a new plaintiff 

may not be substituted for an original plaintiff who lacked 

standing." Id. at 442-43, 344 S.E.2d at 915. The Court then 

stated that "[s]tatutes 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." Id. at 443, 344 S.E.2d at 915 (citation omitted); 

accord Harmon, 273 Va. at 193, 639 S.E.2d at 299; Brake, 268 Va. 

at 99, 597 S.E.2d at 63; Cook v. Radford Community Hosp., Inc., 

260 Va. 443, 451, 536 S.E.2d 906, 910 (2000); Wells v. Lorcom 

House Condominiums' Council of Co-Owners, 237 Va. 247, 253, 377 

S.E.2d 381, 385 (1989). Neither Chesapeake House, Harmon, 

Brake, Cook, nor Wells involved the issue before us today. No 

party in those cases questioned whether a legal proceeding that 

is a nullity can nevertheless be nonsuited. However, when the 

issue was squarely presented in Nerri, we clearly held that a 

proceeding that has no legal effect, i.e., one that is a 

nullity, cannot be nonsuited. 270 Va. at 31, 613 S.E.2d at 430. 

Thus, the language in Chesapeake House and other cases upon 

9 
which Bazemore relies is not controlling.3 

III. CONCLUSION 

Subsection B of Code § 8.01-50 vests the right of action 

for wrongful death in a decedent's personal representative. 

Kone, 272 Va. at 62, 630 S.E.2d at 746. Since Wanda Bazemore 

had not qualified as the personal representative of her 

husband's estate when this wrongful death action was filed, the 

named plaintiff, which was not a legal entity at that time, 

lacked standing to file the action. The action is therefore a 

nullity and cannot be nonsuited. Thus, we will reverse the 

circuit court's judgment granting a nonsuit and denying the 

defendants' motions to abate, and dismiss the action with 

prejudice. 

Reversed and dismissed.

 3

 Bazemore also argues the issue at bar was previously 

addressed in Douglas v. Chesterfield County Police Department, 

251 Va. 363, 467 S.E.2d 474 (1996). As the defendants correctly 

note, the question decided in Douglas concerned the inability of 

a plaintiff to "relate back" her qualification as a personal 

representative of a decedent’s estate to the original date of 

the filing of the action. 251 Va. at 365-66, 467 S.E.2d at 475-

76. Thus, Douglas is inapposite. 

10