2006 Code of Virginia § 8.01-229 - Suspension or tolling of statute of limitations; effect of disabilities; death; injunction; prevent...

8.01-229. Suspension or tolling of statute of limitations; effect ofdisabilities; death; injunction; prevention of service by defendant;dismissal, nonsuit or abatement; devise for payment of debts; new promises;debts proved in creditors' suits.

A. Disabilities which toll the statute of limitations. - Except as otherwisespecifically provided in 8.01-237, 8.01-241, 8.01-242, 8.01-243,8.01-243.1 and other provisions of this Code,

1. If a person entitled to bring any action is at the time the cause ofaction accrues an infant, except if such infant has been emancipated pursuantto Article 15 ( 16.1-331 et seq.) of Chapter 11 of Title 16.1, orincapacitated, such person may bring it within the prescribed limitationperiod after such disability is removed; or

2. After a cause of action accrues,

a. If an infant becomes entitled to bring such action, the time during whichhe is within the age of minority shall not be counted as any part of theperiod within which the action must be brought except as to any such periodduring which the infant has been judicially declared emancipated; or

b. If a person entitled to bring such action becomes incapacitated, the timeduring which he is incapacitated shall not be computed as any part of theperiod within which the action must be brought, except where a conservator,guardian or committee is appointed for such person in which case an actionmay be commenced by such conservator, committee or guardian before theexpiration of the applicable period of limitation or within one year afterhis qualification as such, whichever occurs later.

For the purposes of subdivisions 1 and 2 of this subsection, a person shallbe deemed incapacitated if he is so adjudged by a court of competentjurisdiction, or if it shall otherwise appear to the court or jurydetermining the issue that such person is or was incapacitated within theprescribed limitation period.

3. If a convict is or becomes entitled to bring an action against hiscommittee, the time during which he is incarcerated shall not be counted asany part of the period within which the action must be brought.

B. Effect of death of a party. - The death of a person entitled to bring anaction or of a person against whom an action may be brought shall toll thestatute of limitations as follows:

1. Death of person entitled to bring a personal action. - If a personentitled to bring a personal action dies with no such action pending beforethe expiration of the limitation period for commencement thereof, then anaction may be commenced by the decedent's personal representative before theexpiration of the limitation period including the limitation period asprovided by subdivision E 3 or within one year after his qualification aspersonal representative, whichever occurs later.

2. Death of person against whom personal action may be brought. - a. If aperson against whom a personal action may be brought dies before thecommencement of such action and before the expiration of the limitationperiod for commencement thereof then a claim may be filed against thedecedent's estate or an action may be commenced against the decedent'spersonal representative before the expiration of the applicable limitationperiod or within one year after the qualification of such personalrepresentative, whichever occurs later.

b. If a person against whom a personal action may be brought dies before suitpapers naming such person as defendant have been filed with the court, thensuch suit papers may be amended to substitute the decedent's personalrepresentative as party defendant before the expiration of the applicablelimitation period or within two years after the date such suit papers werefiled with the court, whichever occurs later, and such suit papers shall betaken as properly filed.

3. Effect of death on actions for recovery of realty, or a proceeding forenforcement of certain liens relating to realty. - Upon the death of anyperson in whose favor or against whom an action for recovery of realty, or aproceeding for enforcement of certain liens relating to realty, may bebrought, such right of action shall accrue to or against his successors ininterest as provided in Article 2 ( 8.01-236 et seq.) of this chapter.

4. Accrual of a personal cause of action against the estate of any personsubsequent to such person's death. - If a personal cause of action against adecedent accrues subsequent to his death, an action may be brought againstthe decedent's personal representative or a claim thereon may be filedagainst the estate of such decedent before the expiration of the applicablelimitation period or within two years after the qualification of thedecedent's personal representative, whichever occurs later.

5. Accrual of a personal cause of action in favor of decedent. - If a persondies before a personal cause of action which survives would have accrued tohim, if he had continued to live, then an action may be commenced by suchdecedent's personal representative before the expiration of the applicablelimitation period or within one year after the qualification of such personalrepresentative, whichever occurs later.

6. Delayed qualification of personal representative. - If there is aninterval of more than two years between the death of any person in whosefavor or against whom a cause of action has accrued or shall subsequentlyaccrue and the qualification of such person's personal representative, suchpersonal representative shall, for the purposes of this chapter, be deemed tohave qualified on the last day of such two-year period.

C. Suspension during injunctions. - When the commencement of any action isstayed by injunction, the time of the continuance of the injunction shall notbe computed as any part of the period within which the action must be brought.

D. Obstruction of filing by defendant. - When the filing of an action isobstructed by a defendant's (i) filing a petition in bankruptcy or filing apetition for an extension or arrangement under the United States BankruptcyAct or (ii) using any other direct or indirect means to obstruct the filingof an action, then the time that such obstruction has continued shall not becounted as any part of the period within which the action must be brought.

E. Dismissal, abatement, or nonsuit

1. Except as provided in subdivision 3 of this subsection, if any action iscommenced within the prescribed limitation period and for any cause abates oris dismissed without determining the merits, the time such action is pendingshall not be computed as part of the period within which such action may bebrought, and another action may be brought within the remaining period.

2. If a judgment or decree is rendered for the plaintiff in any actioncommenced within the prescribed limitation period and such judgment or decreeis arrested or reversed upon a ground which does not preclude a new actionfor the same cause, or if there is occasion to bring a new action by reasonof the loss or destruction of any of the papers or records in a former actionwhich was commenced within the prescribed limitation period, then a newaction may be brought within one year after such arrest or reversal or suchloss or destruction, but not after.

3. If a plaintiff suffers a voluntary nonsuit as prescribed in 8.01-380,the statute of limitations with respect to such action shall be tolled by thecommencement of the nonsuited action, and the plaintiff may recommence hisaction within six months from the date of the order entered by the court, orwithin the original period of limitation, or within the limitation period asprovided by subdivision B 1, whichever period is longer. This tollingprovision shall apply irrespective of whether the action is originally filedin a federal or a state court and recommenced in any other court, and shallapply to all actions irrespective of whether they arise under common law orstatute.

F. Effect of devise for payment of debts. - No provision in the will of anytestator devising his real estate, or any part thereof, subject to thepayment of his debts or charging the same therewith, or containing any otherprovision for the payment of debts, shall prevent this chapter from operatingagainst such debts, unless it plainly appears to be the testator's intentthat it shall not so operate.

G. Effect of new promise in writing

1. If any person against whom a right of action has accrued on any contract,other than a judgment or recognizance, promises, by writing signed by him orhis agent, payment of money on such contract, the person to whom the righthas accrued may maintain an action for the money so promised, within suchnumber of years after such promise as it might be maintained if such promisewere the original cause of action. An acknowledgment in writing, from which apromise of payment may be implied, shall be deemed to be such promise withinthe meaning of this subsection.

2. The plaintiff may sue on the new promise described in subdivision 1 ofthis subsection or on the original cause of action, except that when the newpromise is of such a nature as to merge the original cause of action then theaction shall be only on the new promise.

H. Suspension of limitations in creditors' suits. - When an action iscommenced as a general creditors' action, or as a general lien creditors'action, or as an action to enforce a mechanics' lien, the running of thestatute of limitations shall be suspended as to debts provable in such actionfrom the commencement of the action, provided they are brought in before thecommissioner in chancery under the first reference for an account of debts;but as to claims not so brought in the statute shall continue to run, withoutinterruption by reason either of the commencement of the action or of theorder for an account, until a later order for an account, under which they docome in, or they are asserted by petition or independent action.

In actions not instituted originally either as general creditors' actions, oras general lien creditors' actions, but which become such by subsequentproceedings, the statute of limitations shall be suspended by an order ofreference for an account of debts or of liens only as to those creditors whocome in and prove their claims under the order. As to creditors who come inafterwards by petition or under an order of recommittal, or a later order ofreference for an account, the statute shall continue to run withoutinterruption by reason of previous orders until filing of the petition, oruntil the date of the reference under which they prove their claims, as thecase may be.

I. When an action is commenced within a period of thirty days prior to theexpiration of the limitation period for commencement thereof and thedefending party or parties desire to institute an action as third-partyplaintiff against one or more persons not party to the original action, therunning of the period of limitation against such action shall be suspended asto such new party for a period of sixty days from the expiration of theapplicable limitation period.

J. If any award of compensation by the Workers' Compensation Commissionpursuant to Chapter 5 ( 65.2-500 et seq.) of Title 65.2 is subsequentlyfound void ab initio, other than an award voided for fraudulent procurementof the award by the claimant, the statute of limitations applicable to anycivil action upon the same claim or cause of action in a court of thisCommonwealth shall be tolled for that period of time during whichcompensation payments were made.

K. Suspension of limitations during criminal proceedings. - In any personalaction for damages, if a criminal prosecution arising out of the same factsis commenced, the time such prosecution is pending shall not be computed aspart of the period within which such a civil action may be brought. Forpurposes of this subsection, the time during which a prosecution is pendingshall be calculated from the date of the issuance of a warrant, summons orcapias, the return or filing of an indictment or information, or thedefendant's first appearance in any court as an accused in such aprosecution, whichever date occurs first, until the date of the finaljudgment or order in the trial court, the date of the final disposition ofany direct appeal in state court, or the date on which the time for noting anappeal has expired, whichever date occurs last. Thereafter, the civil actionmay be brought within the remaining period of the statute or within one year,whichever is longer.

If a criminal prosecution is commenced and a grand jury indictment isreturned or a grand jury indictment is waived after the period within which acivil action arising out of the same set of facts may be brought, a civilaction may be brought within one year of the date of the final judgment ororder in the trial court, the date of the final disposition of any directappeal in state court, or the date on which the time for noting an appeal hasexpired, whichever date occurs last, but no more than ten years after thedate of the crime or two years after the cause of action shall have accruedunder 8.01-249, whichever date occurs last.

(Code 1950, 8-8, 8-13, 8-15, 8-20, 8-21, 8-25, 8-26, 8-29 through 8-34;1964, c. 219; 1966, c. 118; 1972, c. 825; 1977, c. 617; 1978, cc. 65, 767;1983, cc. 404, 437; 1986, c. 506; 1987, cc. 294, 645; 1988, c. 711; 1989, c.588; 1990, c. 280; 1991, cc. 693, 722; 1993, c. 844; 1997, c. 801; 2000, c.531; 2001, cc. 773, 781.)