concurring in part and dissenting in part.
I agree that Eshbaugh’s fraud action, filed more than five years after May 19, 1977, the date he discovered the fraud, was time-barred under the law of the case. I cannot agree that Eshbaugh was injured as of May 19, 1977, but Code § 8.01-249(1) unequivocally provides that the limitations period for fraud begins to run on the discovery date. But cf. Keller v. Denny, 232 Va. 512, 520, 352 S.E.2d 327, 332 (1987) (Stephenson, J., concurring) (statute of limitations that would bar action before injury occurred would unconstitutionally deprive a person of property without due process of law).
I dissent from the majority’s conclusion that Eshbaugh’s cause of action alleging a conspiracy to injure him in his business was filed too late. The majority contends that Eshbaugh’s injury occurred on May 12, 1977 when he signed the cancellation agreement. The mere existence of a shorter lease term, however, did not injure Eshbaugh’s business. Eshbaugh carried on his business in May expecting to continue under a new lease with Hornsby. His cause of action did not accrue on the date Eshbaugh signed the cancellation agreement because a portion of the alleged conspiracy was not yet fulfilled. See Blackwelder v. Millman, 522 F.2d *78766, 776 (4th Cir. 1975) (applying Virginia law). It was completed when the cancellation agreement became effective without a replacement lease with Hornsby on May 31, 1977. On that date Eshbaugh’s business sustained injury because Eshbaugh had lost his legal right to continue his business on the premises.
It is true that part of the alleged conspiracy to cause the injury had occurred earlier but, as the majority recognizes, a cause of action for conspiracy under Code § 18.2-500 accrues when the plaintiff incurs injury to his business.
The gist of the civil action of conspiracy is the damage caused by the acts committed in pursuance of the formed conspiracy and not the mere combination of two or more persons to accomplish an unlawful purpose or use unlawful means. In other words, the basis of the action is the wrong which is done under the conspiracy and which results in damage to the plaintiff. No cause of action exists without the resulting injury, and the damage produced must arise as the effective result of the conspiracy.
Gallop v. Sharp, 179 Va. 335, 338, 19 S.E.2d 84, 86 (1942) (citations omitted).
The five-year limitation on Eshbaugh’s cause of action for conspiracy did not expire, at the earliest, until May 31, 1982. He filed his motion for judgment on May 26, 1982. Accordingly, I would affirm the trial court’s judgment on the fraud count but reverse the judgment and remand the case for a trial on the conspiracy count.