Present: Hassell, C.J., Koontz, Kinser, Goodwyn, Millette, and
Mims, JJ., and Russell, S.J.
JOSEPHINE VAN DAM
OPINION BY
v. Record No. 091659 SENIOR JUSTICE CHARLES S. RUSSELL
September 16, 2010
GORDON B. GAY
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
John E. Kloch, Judge
This appeal presents a question as to the time a right of
action accrued, and the statute of limitations began to run,
in an action to recover damages for legal malpractice.
Facts and Proceedings
The facts are undisputed. Nicholas J. Van Dam (the
former husband) and Josephine F. Van Dam (the wife) were
parties to a divorce suit in 1986. The wife retained Gordon
B. Gay, an attorney at law, (the defendant) to represent her
in the case. The parties and their attorneys negotiated a
settlement of the issues in the suit and entered into a
property settlement agreement, drafted by the defendant, on
September 30, 1986. During the marriage, the former husband
participated in two federal retirement plans, related to his
military service and civil service employment. The property
settlement agreement made only the following reference to
them: “The wife shall receive . . . survivor’s benefits from
the husband’s retirement pay.”
On November 3, 1986, the circuit court entered a final
decree of divorce, ratifying and incorporating the property
settlement agreement. The former husband died on June 22,
2006. Immediately thereafter, the wife applied to the
appropriate federal authorities for survivor’s benefits under
her former husband’s two retirement plans. Both claims were
denied on the ground that the 1986 property settlement
agreement was insufficient, as a matter of federal law, to
entitle her to any benefits under either plan.
On January 26, 2009, the wife brought this action to
recover damages for legal malpractice against the defendant.
The defendant filed a plea in bar asserting the statute of
limitations. The circuit court received briefs, heard
arguments, and sustained the plea of the statute of
limitations, dismissing the wife’s complaint with prejudice.
We awarded the wife an appeal.
Analysis
Appeal of a decision on a plea in bar of the statute of
limitations involves a question of law that we review de novo.
Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574
(2008). Because no evidence was presented on the plea in bar,
we are limited to the facts set forth in the complaint and the
defendant has the burden of proof on the issue that the
limitation period had run when the complaint was filed.
2
Schmidt v. Household Fin. Corp., II, 276 Va. 108, 112, 117,
661 S.E.2d 834, 836, 839 (2008).
The circuit court held that the wife’s cause of action
accrued in 1986, when the defendant’s alleged malpractice
occurred, and that the statute of limitations had therefore
run long before the filing of this action. The wife contends
that she suffered no injury resulting from the defendant’s
malpractice until the date of her former husband’s death on
June 22, 2006, and that this action thus was timely filed. 1
Code § 8.01-230 provides, in pertinent part:
In every action for which a limitation period is
prescribed, the right of action shall be deemed to
accrue and the prescribed limitation period shall
begin to run from the date . . . when the breach of
contract occurs in actions ex contractu and not when
the resulting damage is discovered . . . .” 2
The terms “right of action” and “cause of action,”
although sometimes used interchangeably, are not synonymous.
Stone v. Ethan Allen, Inc., 232 Va. 365, 368, 350 S.E.2d 629,
1
In Virginia, actions for legal malpractice sound in
contract and are thus governed by the limitation periods
prescribed for contract claims. Oleyar v. Kerr, 217 Va. 88,
90, 225 S.E.2d 398, 399 (1976). Those periods are three years
for breach of an oral contract and five years for breach of a
written contract. Code § 8.01-246.
2
The Virginia General Assembly has consistently declined
to adopt a "discovery rule." See e.g., H.B. 486, Va. Gen.
Assem. (Reg. Sess. 1994) and H.B. 569, Va. Gen. Assem. (Reg.
Sess. 1994) (proposals to add discovery rule provision for
injuries to person or damage to property not enacted).
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631 (1986). They may accrue simultaneously but that will not
always be the case. A right of action cannot arise until a
cause of action exists because a right of action is a remedial
right to presently enforce an existing cause of action.
Shipman v. Kruck, 267 Va. 495, 502, 593 S.E.2d 319, 322
(2004).
The wife concedes that the accrual of her right of action
did not await her discovery of the defendant’s malpractice,
but contends that her cause of action could not have accrued,
and therefore her right of action did not accrue, until she
suffered damage arising from the defendant’s malpractice.
This is so, her argument continues, because injury or damage
is an essential element of any cause of action. Her damage
did not occur, she contends, until the death of her former
husband in 2006, when her right to survivors’ benefits would
have arisen but for the defendant’s malpractice. She contends
that before her former husband’s death, her right to
survivors’ benefits would have been purely contingent upon his
predeceasing her.
We addressed a similar issue in MacLellan v.
Throckmorton, 235 Va. 341, 367 S.E.2d 720 (1988). In that
case, the plaintiff engaged the defendant attorney to
represent him in a divorce case. The plaintiff alleged that
the attorney negotiated a property settlement agreement that
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the plaintiff signed only because the attorney represented to
him that its provisions for spousal support could later be
modified by the court if the plaintiff were to suffer a change
in his circumstances. The plaintiff further alleged that this
representation was erroneous, that he later became disabled
and unable to work, but found that the agreed provisions for
spousal support, incorporated into the divorce decree, could
not be modified. The plaintiff sued the attorney for
malpractice and was met by a plea of the statute of
limitations. There, we held that the cause of action accrued
upon the termination of the particular undertaking in which
the attorney was engaged. That was the date of entry of the
final decree of divorce, which occurred more than three years
before the malpractice action was filed. Id. at 345, 367
S.E.2d at 722. We affirmed the trial court’s judgment
sustaining the plea of the statute of limitations. Id.
We reached that result despite the fact that the
plaintiff did not become aware of the malpractice until after
the limitation period had run, and even if he had been aware
of it in time, he would have then been unable to quantify his
damages with precision. His injury arising from the
attorney’s malpractice occurred when the court entered a final
decree of divorce incorporating a property settlement
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agreement that, contrary to the attorney’s assurance, was not
subject to change.
In the present case the wife relies on Rutter v. Woltz,
Blechman, Woltz & Kelly, P.C., 264 Va. 310, 568 S.E.2d 693
(2002). In that case the executor of a decedent’s estate sued
a law firm for malpractice in preparing testamentary documents
that incurred tax liabilities that could have been avoided.
Id. at 312-13, 568 S.E.2d at 694. The issue in Rutter was not
the statute of limitations, but rather was whether the cause
of action arose during the decedent’s lifetime and survived
her death pursuant to Code § 8.01-25. Id. at 313, 568 S.E.2d
at 694-95. That section limits the survival of actions to
those that “existed” prior to a decedent’s death. The
question was whether the decedent could have maintained the
malpractice action against the attorney during her lifetime.
We answered that question in the negative because no cause of
action existed until some injury or damage was sustained as a
result of the malpractice. Since the damage in Rutter was
limited to the unnecessary taxes and fees that were not
incurred until after the decedent's death, we held that no
cause of action existed during her lifetime and thus there was
no cause of action that could survive her death. Id. at 314,
568 S.E.2d at 695.
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The distinction between Rutter and the present case lies
in the mutability of testamentary dispositions during the
testator’s lifetime. A testator may, during his lifetime,
alter his will or other testamentary papers as he pleases and
whenever he chooses. See e.g., Schilling v. Schilling, 280
Va. 146, 149, 695 S.E.2d 181, 183 (2010) (a will does not
"take effect until the death of the maker" and "has no life or
force" while the maker is alive) (quoting Timberlake v. State-
Planters Bank of Commerce & Trusts, 201 Va. 950, 957, 115
S.E.2d 39, 44 (1960)). While he lives, no beneficiary has
anything more than a bare expectancy and no person has
suffered any injury or damage as a result of his tentative
dispositions. Thus the claimant in Rutter could have suffered
no injury or damage during the decedent's lifetime and there
was no cause of action that could have survived her death. In
the present case, as in MacLellan, the plaintiff suffered a
legal injury arising out of the defendant’s malpractice when
the final decree of divorce, incorporating the defective
property settlement agreement, was entered by the circuit
court.
The legal injury suffered by the wife in the present case
in 1986 was not vitiated by the fact that her right to pension
benefits was contingent upon her surviving her former husband.
By virtue of the equitable distribution statutes, Code §§ 20-
7
107.3(A)(2) and (G), in divorce proceedings all pensions are
presumed to be marital property in the absence of satisfactory
evidence that they are separate property and the court may
direct payment of the marital share of such benefits whether
they are “vested or nonvested” as they become payable. In
Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (1994), the
Court of Appeals approved an award to a wife of a percentage
of the marital share of her husband’s military retirement
benefits as they became payable in the future, despite the
fact that the husband had, at the time of divorce, nine more
years to serve in the Air Force before his military pension
rights would become vested. Id. at 728-29, 446 S.E.2d at 895.
Some injury or damage, however slight, is essential to a
cause of action, but it is immaterial that all the damages
resulting from the injury do not occur at the time of the
injury. The running of the limitation period will not be
tolled by the fact that actual or substantial damages did not
occur until a later date. Difficulty in ascertaining the
existence of a cause of action is similarly irrelevant. This
time-honored rule may produce inequities by triggering a
statute of limitations when the injury or damage is unknown or
difficult or even incapable of discovery, but we have long
concluded that it is the role of the General Assembly, not the
courts, to change a rule of law that has been relied upon by
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the bench and bar for many years. Shipman, 267 Va. at 502-03,
593 S.E.2d at 323; Virginia Military Inst. v. King, 217 Va.
751, 759, 232 S.E.2d 895, 900 (1977).
Conclusion
The circuit court correctly held that the wife’s legal
injury arising out of the defendant’s alleged malpractice
occurred on November 3, 1986, when the court entered a final
decree of divorce, terminating the defendant’s employment in
the matter in which he was engaged. The wife’s right of
action accrued on that date and the statute of limitations
then began to run. The court did not err in sustaining the
plea in bar and we will accordingly affirm the judgment.
Affirmed.
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