VanMarter argues that the appeal filed on behalf of the Hawthorne Estate must be dismissed because the Administrators filed the appeal in a pro se capacity. VanMarter asserts that our holding in Kone v. Wilson, 272 Va. 59, 630 S.E.2d 744 (2006), that an administrator of an estate may not file an action in a pro se capacity, unequivocally bars the Administrators' appeal here. In response, the Administrators argue that the holding in Kone is not applicable to this appeal because that holding does not address whether an administrator may file an appeal in this Court, as opposed to a complaint in a circuit court, in a pro se capacity.
" Shipe, 280 Va. at 483; see also Aguilera v. Christian, 280 Va. 486, 488 (2010); Russell v. Gennari, Case No. 1:07-CV-793, 2007 WL 3389998 (E.D. Va. Nov. 8,2007). Virginia Code § 8.01-6 permits a pleading to relate back to an original pleading when a party seeks to correct a misnomer, add a party, or add a claim or defense. Kone v. Wilson, 272 Va. 59, 63 (2006). "A defect in a signature to a pleading is not a defect that can be corrected pursuant to these statutes."
Shipe is the most recent in a series of cases in which we have addressed the efficacy of a pleading "signed only by a person ... who is not licensed to practice law in Virginia." 280 Va. at 483, 699 S.E.2d 519 ; see also , e.g. , Aguilera v. Christian , 280 Va. 486, 699 S.E.2d 517 (2010) ; Kone v. Wilson , 272 Va. 59, 630 S.E.2d 744 (2006) ; Nerri v. Adu-Gyamfi , 270 Va. 28, 613 S.E.2d 429 (2005) ; Wellmore Coal Corp. v. Harman Mining Corp. , 264 Va. 279, 568 S.E.2d 671 (2002). In Shipe , the issue was whether an attorney not licensed to practice law in Virginia could sign a pleading on behalf of a Virginia attorney in his capacity as "co-counsel" without having been admitted to practice pro hac vice , 280 Va. at 482, 699 S.E.2d 519, while in Aguilera , decided the same day as Shipe , we considered whether a pro se litigant may validly authorize a person not licensed to practice law in Virginia to sign a pleading on the litigant's behalf.
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 cfi]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.
Id. (citing Kone v. Wilson, 272 Va. 59, 63 (2006)). The Court held that,
(Defs.' Mem. Supp. at 4.) Defendants rely on the Supreme Court of Virginia's decision in Kone v. Wilson, in which the court held a personal representative could not bring a wrongful death action pro se because "[t]he cause of action . . . does not belong to the personal representative but to the decedent's beneficiaries identified in [Va.] Code § 8.01-53." 272 Va. 59, 630 S.E.2d 744, 746 (2006) (emphasis in original). Defendants read this to mean that the Supreme Court of Virginia "categorically prohibits a personal representative of an estate from acting pro se."
Moreover, to the extent Plaintiff believes he can represent his wife or son in this action, individuals who are not licensed attorneys may not represent third parties because such representation constitutes the unauthorized practice of law. Rules of Supreme Court of Virginia, Pt. 6, § I; see DePonceau v. Pataki, 315 F. Supp. 2d 338, 341-42 (W.D.N.Y. 2004); Kone v. Wilson, 630 S.E.2d 744, 745-46 (Va. 2006). Accordingly, Plaintiff is reminded that he is the sole Plaintiff in this action and any claim that Plaintiff purportedly brings on behalf of his wife or son will not be considered.
State Farm argued that the original complaint was invalid, since it was signed "only by a person acting in a representative capacity who is not licensed to practice law in Virginia." Shipe v. Hunter, 699 S.E.2d 519, 520 (Va. 2010); see also Kone v. Wilson, 630 S.E.2d 744, 746 (Va. 2006) (holding that the plaintiff's "surrogate status precluded a pro se filing because he was acting in a representative capacity for the true parties in interest"). On November 1, 2012, Gates filed an amended complaint under a revised caption: "John R. Gates, individually and as agent and bailee for Individual Plaintiffs Marjorie G. Adam, [A.A.], [L.A.], Jacques R. Gates, [E.G.], and [C.G.] v. State Farm Fire and Casualty Company."
Plaintiff's strategic decision to challenge the conviction in the circuit court by relying on a non-attorney with a "power of attorney" to file pleadings on his behalf instead of filing a notice of appeal with the circuit court constitutes, at a minimum, the partial negligence or fault that would have prevented plaintiff from receiving a belated appeal. See Va. Code § 8.01-271.1 (a party represented by an attorney that files a motion in court must have a Virginia attorney's signature or a party proceeding pro se must sign the document); Va. Sup. Ct. R. 1:5 (counsel defined as an attorney licensed to practice law in Virginia by the Virginia State Bar); Kone v. Wilson, 272 Va. 59, 62-63, 630 S.E.2d 744, 745-46 (2006) (stating a pleading signed by a representative who is not authorized to practice law in Virginia is invalid and without legal effect). See also Va. Code § 54.1-3904 (making the unauthorized practice of law a Class 1 misdemeanor).
Furthermore, insofar as the Plaintiff alleges that the hospital was negligent in failing to monitor its controlled substances, this claim belongs to his son's estate. Va. Code Ann. § 8.01-50;Kone v. Wilson, 630 S.E.2d 744, 746 (Va. 2006). In Virginia, although an action for wrongful death must be brought in the name of the personal representative, the state Supreme Court has been clear that the personal representative cannot proceed pro se on such a claim.