
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Mike Willoughby v. James A. Bullard, Jr.
    January 8, 2015
    Case No. CL13-1911
   By Judge Melvin R. Hughes, Jr.

The parties appeared on December 8,2014, on the matter of the defendant’s Plea of the Statute of Limitations in this case of alleged legal malpractice.

At that time, plaintiff, who is proceeding pro se, argued that, during the asserted three-year limitation period, he was under a disability due to insanity or incompetency and, thereby, the limitation period should not accrue to deny his claim.

As noted, this case is a claim of legal malpractice. There is no dispute that the defendant lawyer’s representation of plaintiff arose from a court appointment in a criminal case and the last act of that representation was on July 25,2008. This is the date on which the cause of action accrued. The plaintiff’s Complaint was filed on April 22, 2013.

It is the court’s view that, rather than a three-year period, the controlling limitations period is five years, based on a written contract of court appointment with the Commonwealth to provide plaintiff with representation in the underlying case. The Supreme Court of Virginia has stated that “an action for the negligence of an attorney in the performance of professional services, while sounding in tort, is an action for breach of contract and thus governed by the statute of limitations applicable to contracts.” Oleyar v. Kerr, 217 Va. 88, 90 (1976) (collecting cases); accord Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp., 249 Va. 426, 432 (1995). The limitations period for a breach of contract action is five years. Va. Code Ann. § 8.01-246. Thus, the action filed on April 22, 2013, is timely filed.

This makes a further consideration of plaintiff’s mental disability irrelevant for now because the action was brought within the limitation period as plaintiff is suing upon a written contract between the defendant and the Commonwealth as a third-party beneficiary.

The defendant’s Plea of the Statute of Limitations will, therefore, be denied.  