
    CIRCUIT COURT OF FAIRFAX COUNTY
    Harvey Helm v. J. Marvin Lyons et al.
    March 22, 1991
    Case No. (Chancery) 108895
   By JUDGE THOMAS S. KENNY

This cause is before the Court pn the plaintiff’s Motion to Reconsider the granting of defendants’ Motion to Strike. The proper issue for decision at this time was whether the court erred in granting the Motion to Strike based on a plea to the statute of limitations.

The relevant procedural facts reveal that an issue out of chancery was ordered by this Court on January 30, 1991. The issue was tried before a jury until the close of plaintiff’s evidence, at which time the defendant raised the defense of the statute of limitations through a Motion to Strike. At the close of oral argument on this point, I granted the Motion to Strike and dismissed the Bill of Complaint. An order encapsulating these rulings was entered on March 18, 1991. It is my opinion that the Motion to Strike was improvidently granted.

Section 8.01-235 of the Virginia Code explains that the defense of the statute of limitations is an affirmative defense. In Columbia Heights v. Griffiths-Consumers, 205 Va. 43 (1964), the Supreme Court of Virginia held that "[w]here the statute of limitations is pleaded as a defense, the party relying thereon has the burden of showing by a preponderance of the evidence that the cause of action arose more than the statutory period before the actions was instituted." Id. at 47-8. (Citations omitted). Such being the law in Virginia, it was error for this Court to relieve defendant of his burden of proof by granting the Motion to Strike, especially in light of the disagreement among counsel as to which was the proper statute of limitations to apply and at what point the cause of action accrued.

The order granting the motion to strike will be vacated by this Court.  