Present: All the Justices
NOELLE RIVERA, ET AL.
v. Record No. 990081 OPINION BY JUSTICE CYNTHIA D. KINSER
December 22, 1999
THOMAS R. NEDRICH
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
In this appeal, we consider whether the circuit court
erred in sustaining the defendant’s plea in bar asserting
that the applicable statute of limitations had expired.
Because we conclude there was error, we will reverse the
judgment of the circuit court.
FACTS
Thomas R. Nedrich executed a promissory note dated
February 16, 1989, payable to “Marta X. Rivera, Trustee for
Noelle and Sebastian Rivera” (the Rivera children). The
Rivera children were both minors. Under the terms of the
note, the entire principal balance of $10,000 plus
outstanding interest was due and payable on February 1,
1990.
Nedrich allegedly made only two interest payments on
the note and failed to make timely payment of the principal
balance and outstanding interest. Consequently, Marta, in
her individual capacity, filed a motion for judgment
against Nedrich in the circuit court on June 18, 1993. In
response, Nedrich filed a plea in bar in which he asserted
that Marta could not maintain the action against him
because she was not the proper party plaintiff. Nedrich
pointed out that Marta had filed the motion for judgment in
her individual capacity although the note was payable to
her as “Trustee” for the Rivera children. By order dated
June 1, 1994, the circuit court sustained the plea in bar
on the basis that Marta was not the proper party plaintiff,
and entered judgment against her.
A second motion for judgment was subsequently filed
against Nedrich on October 31, 1997. The named plaintiffs
in that action were “Noelle Rivera, a minor, and Sebastian
Rivera, a minor, by their next friend and trustee, Diane C.
Gravis.” As Marta had alleged in the first action, the
plaintiffs in the second lawsuit also alleged that Nedrich
had defaulted on the payment of the promissory note, and
sought judgment against him.
Again, Nedrich filed a plea in bar. In this plea,
Nedrich asserted that the cause of action accrued on
February 1, 1990, and consequently, the applicable five-
year statute of limitations contained in Code § 8.01-246(2)
expired prior to the filing of the second action. The
circuit court sustained the plea in bar and dismissed the
2
action in an order dated May 22, 1998. We granted the
plaintiffs this appeal.
ANALYSIS
The plaintiffs present two arguments in support of
their position that the circuit court erred in granting
Nedrich’s plea in bar to the second action. First, the
plaintiffs assert that the court erred in concluding that
the applicable statute of limitations had expired. They
argue that, due to the infancy of the Rivera children, the
statute of limitations was tolled pursuant to Code § 8.01-
229. Second, the plaintiffs assert that Nedrich took
inconsistent positions in the two actions filed against
him. Thus, they contend that the circuit court should have
“estopped [Nedrich] . . . from taking [an] opposite
position” from the one he espoused in the first action.
With regard to the question concerning the statute of
limitations, Code § 8.01-246(2) requires that a cause of
action on a written contract be brought within five years
after the cause of action accrues. This section applies to
a promissory note such as the one at issue in this appeal.
Harris & Harris v. Tabler, 232 Va. 75, 348 S.E.2d 241
(1986). A cause of action on a note accrues when the
obligation to pay is breached. Code § 8.01-230.
Accordingly, when Nedrich allegedly failed to make payment
3
on February 1, 1990, the due date of the note, the cause of
action accrued and the prescribed limitation period began
to run. Consequently, that cause of action expired five
years later, unless it was tolled.
The plaintiffs assert that the infancy of the Rivera
children tolled the running of the statute of limitations
in the present action. They contend that Code § 8.01-
229(A)(1), which states that “[i]f a person entitled to
bring any action is at the time the cause of action accrues
an infant, . . . such person may bring it within the
prescribed limitation period after such disability is
removed,” is applicable because the Rivera children were
infants when the cause of action on the note accrued. The
plaintiffs also rely on Code § 8.01-229(A)(2)(a), which
provides that “[a]fter a cause of action accrues, . . .
[i]f an infant becomes entitled to bring such action, the
time during which he is within the age of minority shall
not be counted as any part of the period within which the
action must be brought . . . .” 1
1
The plaintiffs rely on Code § 8.01-229(A)(2)(a)
because of the circuit court’s comments in the first action
that “the children are the proper parties plaintiffs” to
enforce the terms of the note. On brief, they assert that
it became a “certainty” at that time that the Rivera
children were entitled to bring the present cause of
action.
4
We agree that the plaintiffs receive the benefit of
the tolling provision in Code § 8.01-229(A)(1). The Rivera
children brought the second action against Nedrich through
Gravis, acting as their “next friend” in accordance with
Code § 8.01-8. That section provides that “[a]ny minor
entitled to sue may do so by his next friend.” When a suit
is filed in this manner, it must be styled in the infant’s
name by his or her next friend, as was done in the present
case. Womble v. Gunther, 198 Va. 522, 530, 95 S.E.2d 213,
219 (1956); Kirby v. Gilliam, 182 Va. 111, 116-17, 28
S.E.2d 40, 43 (1943).
Although we have not previously addressed the effect
of the tolling provisions in Code § 8.01-229 in a suit
brought on behalf of an infant by a “next friend,” other
courts have concluded that a person under a legal
disability has a right to institute an action through a
guardian, parent, or “next friend” at any time during the
continuance of the disability. See Johnson v. United
States, 87 F.2d 940, 942 (8th Cir. 1937); Barton-Marlow Co.,
Inc. v. Wilburn, 556 N.E.2d 324, 326 (Ind. 1990); Talley by
Talley v. Portland Residence, Inc., 582 N.W.2d 590, 592
(Minn. Ct. App. 1998). Long before the enactment of Code
§ 8.01-229, we did note, however, that no authority showed
that an infant could not sue both when his or her infancy
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terminated, as well as by a “next friend” during the time
between the accrual of the cause of action and the
termination of infancy. Hansford v. Elliott, 36 Va. (9
Leigh) 79, 95 (1837). Thus, we conclude that a person
under a legal disability, such as the Rivera children, may
bring an action by a “next friend” at any time during the
continuance of the legal disability or, after the
disability is removed, in their own name within such time
as allowed under Code § 8.01-229 and the prescribed
limitation period. “It would be strangely lacking in
common sense to compel an infant to wait helpless and
without possibility of redress for his grievances during
the period between the expiration of the limitation barring
actions by those of full age and of sound mind and the time
of reaching his majority.” Johnson, 87 F.2d at 943.
Relying on Beverage v. Harvey, 602 F.2d 657 (4th Cir.
1979), Nedrich nevertheless contends that the statute of
limitations applicable to the instant case is not tolled by
the infancy of the Rivera children. In that case, the
United States Court of Appeals for the Fourth Circuit held
that the statute of limitations for a Virginia wrongful
death action was not tolled by the infancy of the
beneficiary of the action, because, under former Code § 8-
30, the infant beneficiary was not the “person to whom the
6
right accrue[d] to bring any such personal action.”
Instead, such an action must be brought in the name of the
personal representative of the decedent. Id. at 658. We
do not agree with Nedrich because Beverage is not
applicable to the present case.
Although Gravis brought suit both as a “next friend”
and “trustee” of the Rivera children, we find no evidence
of either “explicit language” creating a trust or
“circumstances which show with reasonable certainty that a
trust was intended to be created.” 2 Woods v. Stull, 182 Va.
888, 902, 30 S.E.2d 675, 682 (1944). The use of the term
“Trustee” in the promissory note is not controlling because
of the lack of evidence with regard to the existence of a
trust as well as to the material terms of such a trust.
See Massanetta Springs Summer Bible Conference Encampment
v. Keezell, 161 Va. 532, 540, 171 S.E. 511, 514 (1933)
(purpose of trust must be clearly defined and duties of
trustees prescribed); Executive Comm. of Christian Educ.
and Ministrial Relief v. Shaver, 146 Va. 73, 79, 135 S.E.
714, 715 (1926) (use or non-use of technical words such as
2
As the party asserting the plea in bar, Nedrich bore
the burden of proving facts necessary to establish that the
statute of limitations had run, including the fact that a
valid trust exists. Lo v. Burke, 249 Va. 311, 316, 455
S.E.2d 9, 12 (1995). The plaintiffs contested that fact in
their responses to the plea in bar.
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“trust” or “trustee” is not controlling). The additional
lack of evidence with regard to when or how Gravis became a
“successor” trustee, as alleged in the motion for judgment,
further supports our conclusion that a trust does not exist
with regard to the promissory note at issue in this case.
See generally Code §§ 26-46 through –58 (dealing with
appointment, qualification, resignation and removal of
fiduciaries). Thus, we believe that the note is a contract
entered into for the benefit of the Rivera children.
Accordingly, in contrast to the situation in Beverage, the
Rivera children, pursuant to Code § 55-22, had the right to
file this action, by their “next friend,” to enforce the
terms of the note. 3
For these reasons, we will reverse the judgment of the
circuit court and remand for further proceedings. 4
Reversed and remanded.
3
Nedrich’s reliance on the decisions in Moses v.
Akers, 203 Va. 130, 122 S.E.2d 864 (1961), and Watson
v. Daniel, 165 Va. 564, 183 S.E.2d 183 (1935), is also
misplaced.
4
In light of our decision with regard to the tolling
of the statute of limitations, we do not need to address
the plaintiffs’ other argument.
8