One year statute of limitations on payment bond by Code Sec. 11-23 not tolled by Code Sec. 8.01-229(E)(3) when action voluntarily nonsuited after 1 October 1977, the cause of action arising and pending before 1 October 1977; action is time barred.
Limitations of Actions — Statutory Construction — Suspension or Tolling of Statute of Limitations [Code Sec. 8.01-229(E)(3) (voluntary nonsuit)] — Grants Extended Time During which Claims Arising on or After 1 October 1977 may be Prosecuted — Claim Barred by One Year Limitation Period of Code Sec. 11-23 (action on payment bond).
Celotex supplied roofing materials to Econo-Roof on or prior to 31 January 1976. Econo-Roof, a subcontractor for the construction of additions to schools in Chesterfield County, did not pay Celotex which then filed its motion for judgment on 3 June 1976 against Econo-Roof, Hendrick (the general contractor) and Fidelity (the surety on Hendrick's performance and payment bond). On 14 October 1977 Celotex was granted a voluntary nonsuit in its action against Fidelity and filed its motion for judgment against Fidelity in Chesterfield County on 13 December 1977. Fidelity filed its grounds for defense and pleaded the one year statute of limitations under Code Sec. 11-23. The Court overruled Fidelity's plea of Code Sec. 11-23 and entered judgment for Celotex. On appeal Celotex relies upon the tolling provision of Code Sec. 8.01-229(E)(3) (voluntary nonsuit).
The General Assembly intended by Code Sec. 8.01-256 to maintain the status quo as to actions pending on 1 October 1977 and as to causes of action existing before that date. Thus Code Sec. 8.01-229(E)(3) grants an extended time during which a cause or action arising on or after 1 October 1977 can be brought. Here plaintiff's cause of action on a payment bond accrued prior to 1 October 1977 and was pending prior to that date. It is thus governed by Code Sec. 11-23, being subject to the one year limitation period there prescribed and is time barred. Strickland v. Simpkins, 221 Va. 730, 273 S.E.2d 539 (1981) followed.
PER CURIAM.
This case involves the applicability of the tolling provision of Code Sec. 8.01-229(E)(3), and our decision is controlled by Strickland v. Simpkins, 221 Va. 730, 273 S.E.2d 539 (1981) (this day decided). See also Wood v. Holcombe, 221 Va. 691, 273 S.E.2d 541 (1981) (this day decided).
On June 3, 1976, The Celotex Corporation filed its motion for judgment in the Circuit Court of the City of Richmond, Division I, seeking a judgment against Econo-Roof, Inc., Hendrick Construction Company, Inc., and Fidelity and Deposit Company of Maryland. Subsequently, on October 14, 1977, Celotex was granted a voluntary nonsuit in its action against Fidelity. Celotex then, on December 13, 1977, filed its motion for judgment against Fidelity in the Circuit Court of Chesterfield County. Fidelity filed its grounds of defense and a plea of the statute of limitations. The court overruled Fidelity's plea and entered judgment for Celotex. This appeal questions the court's action in overruling the plea.
Hendrick was the general contractor for the Chesterfield County School Board in the construction of additions to certain county schools, and furnished the county with a performance and payment bond pursuant to Code Sec. 11-23, with Fidelity as surety. Hendrick later entered into a subcontract with Econo-Roof, Inc., to perform the roofing work on the additions. Econo-Roof failed to pay for the roofing materials which were supplied it by Celotex on or prior to January 31, 1976.
This action by Celotex is based on the statutory remedy provided by Virginia Code Sec. 11-23, which states that no action on any payment bond "shall be brought unless within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials." Important to our decision here is the admitted fact that Celotex last supplied materials on or before January 31, 1976, and did not institute the action under review in Chesterfield County until December 13, 1977, a date well beyond the expiration of the one-year limitation period provided for in Code Sec. 11-23.
Celotex, as did the plaintiff in Wood v. Holcombe, supra, relied upon the tolling provision of Sec. 8.01-229(E)(3). It argues that, in taking a voluntary nonsuit in the Circuit Court of the City of Richmond, and then recommencing its action in Chesterfield Circuit Court within six months, it followed the statute, which then read:
If a plaintiff suffers a voluntary nonsuit as prescribed in Sec. 8.01-380 and shall recommence his action within six months, the statute of limitation with respect to such action shall be tolled by the commencement of the nonsuited action.
We find no significant differences between the case under review and those heretofore cited and decided. Plaintiff's action accrued prior to October 1, 1977, and was pending prior to that date. It was therefore governed by the one-year limitation period in effect at that time, and no applicable statutory tolling provision then existed which tolled the statute of limitations as to the Chesterfield action during the pendency of the action in Richmond. Code Sec. 8-34, predecessor to Sec. 8.01-229(E), was not applicable and the tolling provision of Code Sec. 8.01-229(E)(3) applies only to causes or rights of action accruing on or after October 1, 1977. See Code Sec. 8.01-256.
Accordingly, the judgment of the lower court overruling Fidelity's plea of the statute of limitations is reversed and final judgment will be entered here for Fidelity and Deposit Company of Maryland.
Reversed and final judgment.