In civil litigation, there is a time limit for taking legal action, as determined by the statute of limitations applicable to the claim. To determine whether the deadline has passed, it becomes necessary to identify the date from which the time period (typically 2-5 years) should be measured. In most breach-of-contract actions, for example, the limitations period would start to run from the date the contract was breached. In cases where the wrong is continuous and ongoing, however, it can be difficult to identify a specific start date for the statute of limitations. Some states will postpone the expiration of the statute of limitations until the continous wrong comes to an end, though Virginia will usually look only to the date the continuous activity commenced. On the other hand, when wrongful acts are not continuous but occur only at recurring intervals, each occurrence is considered a separate wrong and starts the clock on a new limitations period. Sometimes a judge can rule as a matter of law as to whether a particular breach should be regarded as continuous or recurring; other times, however, such as when material facts are in dispute, juries must make the determination. Whether particular activity can be properly characterized as “continuing” or “recurring” will often make or break the case.
Different states address the continuing-violation doctrine in different ways. There are three main approaches:
- Some states hold that where a tort involves a continuing or repeated injury, the statute of limitations does not begin to run until the date of the last injury or when the tortious acts cease.
- Most states (roughly 2/3 of them) hold that every repetition is a separate wrong subject to a new and separate limitation period for which a new lawsuit may be brought.
- In Virginia, the doctrine is applied to bar claims, not save them. Virginia follows the minority rule that the cause of action accrues when a trespass or interference originates, even if the trespass is a continuing tort. “[W]hen the recurring injuries ‘in the normal course of things, will continue indefinitely, there can be but a single action therefor, and the entire damage suffered, both past and future, must be recovered in that action,’ and as a result, ‘the right to recover will be barred unless it is brought within the prescribed number of years from the time the cause of action accrued.’…In this scenario, the limitation period runs from the start of the continuous and indefinite injury not the end of it.” (See Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 126-27 (2017)). An exception exists where there is an “undertaking” that requires a continuation of services. (See Harris v. K & K Ins. Agency, 249 Va. 157, 161 (1995)). In that event, the statute of limitations does not begin to run until the termination of the undertaking. The exception is very narrow, however, and usually only applies in the context of professional services such as those provided by physicians, attorneys, and accountants.
A continuous breach involves a permanent or indefinite injury that stems from a single wrongful act or policy. The limitations clock starts with the initial injury, and no further acts reset it. A recurring breach involves distinct, separate wrongful acts, each triggering a new cause of action and limitations period. (See Fluor Fed. Sols., LLC v. PAE Applied Techs., LLC, 728 F. App’x 200, 202 (4th Cir. 2018)).
In an opinion dated August 12, 2025, in the case of AV Automotive, L.L.C. v. Bavely, the Virginia Court of Appeals discussed these issues in depth, ultimately upholding the trial court’s decision to allow a jury to determine whether an alleged breach of fiduciary duty should be regarded as “continuous” (in which the claim
AV Automotive had asserted a breach-of-fiduciary-duty claim against Donald Bavely, its former president, alleging he had engaged in self-dealing. Bavely filed a plea in bar raising a statute-of-limitations defense. (The statute of limitations for fiduciary breaches is two years–see Va. Code § 8.01-248). AV alleged that Bavely continued to pay himself excessive salary and fees well into the limitations period. It argued the limitations period had not expired because these fiduciary violations were recurring. Bavely’s position was that any misconduct he may have committed was part of a continuous breach that began years earlier, well outside the two-year window.
The trial court thought it would be appropriate to have a jury decide which party’s characterization of the conduct at issue was the right one. It scheduled the plea in bar for an evidentiary hearing (essentially a mini-trial) that lasted an entire week. The purpose of the hearing was to resolve whether the alleged fiduciary breaches were continuing (and therefore time-barred) or recurring (and potentially within the limitations window). The jury found that the breaches were continuous and thus untimely.
The Court of Appeals affirmed, finding that there was sufficient factual ambiguity to warrant submitting the matter to a jury. Evidence showed that Bavely had received a fixed salary since 2009, and that management fees were paid annually under a formula. Even if improper, the jury could reasonably conclude (and did apparently conclude) that this structure represented a single, continuous breach, as opposed to a series of discrete acts.