
    CIRCUIT COURT OF FAIRFAX COUNTY
    Peter MacDonough v. Alfa Romeo Distributors of North Am.
    November 26, 1990
    Case No. (Law) 97508
   By JUDGE THOMAS A. FORTKORT

This matter is before the Court on defendant’s plea in bar of plaintiff’s motion for judgment. For the following reasons, defendant’s plea in bar is granted, and the plaintiff’s motion for judgment is dismissed with prejudice.

The plaintiff’s first motion for judgment was filed on May 26, 1989. This date started the toll of the statute of limitations. An order of dismissal without prejudice of this action was entered on January 4, 1990. Application of Va. Code § 8.01-229(E)(1) (tolling of statute of limitations) to this case requires the plaintiff to refile his action within the remaining limitations period after the dismissal order is entered. The time the action is pending, before the dismissal order was entered, is not counted as part of this limitation period because to do so would enlarge the statute of limitations beyond its legal limit. Therefore, the defendant is correct in arguing that the plaintiff should have refiled his action on or before May 11, 1990. There were 127 days left in the limitations period prescribed by the Virginia Motor Warranty Enforcement Act when the plaintiff filed his first motion for judgment. Accordingly, the plaintiff had 127 days to refile his action after the order of dismissal was entered. Since the plaintiff did not refile before the expiration of this limitation period, his action is time barred.  