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COOK, et al.



November 3, 2000

Record No. 992710

Present: All the Justices







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

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

The use of the word "shall" indicates
that prosecution of a ward’s cause of action by the fiduciary, if
one has been 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 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 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
, 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
, and Counts.

Cook advances a number of arguments in support
of her position that a suit which does not comply with the
provisions 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 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
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 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.

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.
, 186 Va. 630, 44 S.E.2d 16 (1947), and Waddy v.
, 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 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

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.



[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] 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

[3] Now codified as Code ?? 53.1-221 and –222.