statute of limitations Tag Archives — The Virginia Business Litigation Blog

February 15, 2024

Business Tort Claims Dismissed as Untimely in Dispute Between Wildlife Removal Companies

In this patent and trade-secret dispute between Safe Haven Wildlife Removal and Property Management Experts and Meridian Wildlife Services, the defendant tried to raise the stakes by inserting a number of business torts (including breach of fiduciary duty, tortious interference with contract and business expectancies, and business conspiracy) but the court dismissed these claims as time-barred and ordered that the case proceed only on the patent and trade-secret claims.

Those of you preparing for the Great Backyard Bird Count (which starts tomorrow!) and who spend much of your leisure time doing everything in your power to attract birds to your property may be surprised to hear that “bird removal” is big business. The plaintiff in this case, Safe Haven, “specializes in the safe, effective, and humane bird and wildlife removal solutions for facilities.” (See para. 19 of its Amended Complaint). Meridian, the defendant, describes itself as “an innovator and industry leader in [bird removal and wildlife management] services with extensive experience assisting commercial clients throughout the United States with interior bird removal, exterior bird population reduction, wildlife relocation, nest removal and full facility inspection services.” (See para. 9 of Meridian’s Answer). I guess it’s safe to assume these companies won’t be participating in the popular annual birding event.

October 29, 2019

Waiving the Statute of Limitations: Harder than You Might Think

by Lee E. Berlik

As a general rule, legal rights may be waived by contractual agreement. The protection afforded by statutes of limitations may be waived like other rights, but only in very narrow circumstances, due to a Virginia law that few know about. The General Assembly decided to make it a bit more difficult to waive a statute of limitations than some other rights, and enacted Virginia Code § 8.01-232, which states in pertinent part as follows:

Whenever the failure to enforce a promise, written or unwritten, not to plead the statute of limitations would operate as a fraud on the promisee, the promisor shall be estopped to plead the statute. In all other cases, an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

Now that’s a pile of nearly incomprehensible legalese. One of the purposes of this blog, however, is to help people understand stuff like this, so let me try to decode it for you.

August 10, 2019

Tell the Jury About Your Plea in Bar Now, or Later

by Lee E. Berlik

If you get sued in Virginia on a claim your lawyer tells you is likely barred by the statute of limitations, you can raise the defense by way of a so-called “plea in bar.” A plea in bar is a pleading that presents a single set of facts that, if proven true, would bar the plaintiff’s claim from going forward. For example, if you can prove that the plaintiff’s claim arose earlier than the maximum amount of time permitted under the applicable statute of limitations, you may choose to file a plea in bar at the outset of the case to ask the court to dismiss it for that reason. Are you required to make this request at the outset of the case? No. If for some strategic reason you’d rather keep the defense in your back pocket to tell the jury about at trial, you can do that.

The issue came up recently in Ferguson Enterprises, Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc., or as I like to refer to it, “Furr v. Ferguson.” Furr sued Ferguson in Prince William County on claims arising out of an alleged fraudulent-pricing scheme. Ferguson, a distributor of Trane-branded HVAC systems, had negotiated a pricing structure with Trane that allowed it to charge customers like Furr a discounted price and then receive a rebate or “claim back” from Trane. Furr entered into a contract with Ferguson back in 1995, but eventually came to believe that Ferguson was charging Furr a price above the discounted rate authorized by Trane. Furr sued in 2013 for fraud, unjust enrichment, breach of contract, and other claims.