PRESENT: All the Justices

RADIANCE CAPITAL RECEIVABLES FOURTEEN, LLC,
AS ASSIGNEE OF NEW SOUTH
FEDERAL SAVINGS BANK,
                                                               OPINION BY
v. Record No. 180678                                    JUSTICE TERESA M. CHAFIN
                                                              October 24, 2019
ROBERT D. FOSTER, ET AL.




                    FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                             Charles J. Maxfield, Judge Designate

       This appeal requires us to determine whether a contractual waiver of the right to plead the

statute of limitations was valid or enforceable under Virginia law. Upon review, we conclude

that the waiver at issue was neither valid nor enforceable, and therefore, we affirm the circuit

court’s decision.

                                        I. BACKGROUND

       The pertinent facts of this case are undisputed. On February 21, 2006, Foster and Wilson

Building, LLC (the “Company”), executed a promissory note in favor of New South Federal

Savings Bank (“New South”) based on a construction loan. 1 On March 2, 2006, Robert D.

Foster and James M. Wilson executed a Continuing Guaranty agreement (the “Guaranty”) with

New South in which they personally guaranteed and promised to pay all of the Company’s debt.

In the Guaranty, Foster and Wilson agreed to “waive[] the benefit of any statute of limitations or

other defenses affecting the . . . Guarantor’s liability” under the agreement.




       1
       On December 16, 2008, the Company executed an amended promissory note in favor of
New South in order to correct an error regarding the Company’s name. The execution of the
amended note does not affect this appeal.
        The Company eventually defaulted on the promissory note, and a notice of default and

demand for payment was sent to Foster and Wilson on August 27, 2010. On November 23,

2015, Radiance Capital Receivables Fourteen, LLC (“Radiance Capital”), the assignee of New

South and holder of the promissory note and Guaranty, filed a complaint against Foster and

Wilson in the Circuit Court of Gloucester County. Based on the Guaranty, Radiance Capital

sought to collect the principal balance due on the note, interest, and attorney’s fees. In response

to Radiance Capital’s complaint, Foster and Wilson asserted that Radiance Capital’s claim was

barred by the statute of limitations.

        The circuit court held a hearing regarding the plea in bar based on the statute of

limitations on February 8, 2018. Although the Guaranty stated that it was governed by Alabama

law, both parties agreed that Virginia law supplied the applicable statute of limitations and that a

five-year statute of limitations applied to Radiance Capital’s claim. Foster and Wilson

acknowledged that the Guaranty contained a waiver of their statute of limitations defense. They

maintained, however, that the waiver was unenforceable because it did not meet the specific

requirements of Code § 8.01-232, the statute addressing the “[e]ffect of promises not to plead”

the statute of limitations.

        In response, Radiance Capital emphasized that the present case involved a waiver of the

statute of limitations defense rather than a promise not to plead the statute of limitations at a later

date. Based on this distinction, Radiance Capital maintained that Code § 8.01-232 did not apply

to the waiver at issue. Citing the first sentence of Code § 8.01-232, Radiance Capital also argued

that Foster and Wilson should be estopped from asserting a statute of limitations defense because

the failure to enforce the contractual waiver would “operate as a fraud” on Radiance Capital.




                                                   2
       After considering the parties’ arguments and additional briefing, the circuit court

concluded that the contractual waiver was not valid or enforceable according to the terms of

Code § 8.01-232. Thus, the circuit court sustained the plea in bar based on the statute of

limitations and dismissed Radiance Capital’s complaint with prejudice. This appeal followed.

                                          II. ANALYSIS

       Radiance Capital contends that the circuit court erred by determining that the statute of

limitations waiver set forth in the Guaranty was not valid or enforceable under Code § 8.01-232.

Radiance Capital’s arguments present issues of statutory interpretation. “Under well-established

principles, an issue of statutory interpretation is a pure question of law which we review de

novo.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007). Likewise, an

“[a]ppeal of a decision on a plea in bar of the statute of limitations involves a question of law

that we review de novo.” Van Dam v. Gay, 280 Va. 457, 460 (2010). Upon conducting a de

novo review of the issues presented in this case, we conclude that the waiver at issue was neither

valid nor enforceable.

   A. THE WAIVER CONTAINED IN THE GUARANTY WAS NOT VALID UNDER
      CODE § 8.01-232

       In general, a party may contractually waive “any right conferred by law or contract.”

Gordonsville Energy, L.P. v. Virginia Elec. and Power Co., 257 Va. 344, 356 (1999). “[A] term

of the parties’ contract becomes the law of the case unless such term is repugnant to public

policy or to some rule of law.” Id. at 355.

       The General Assembly has restricted a party’s ability to promise not to plead the statute

of limitations. In pertinent part, Code § 8.01-232 provides that

               [w]henever 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.



                                                  3
               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.

Code § 8.01-232(A).

       The waiver of the right to plead the statute of limitations at issue in this case does not

meet the specific requirements of Code § 8.01-232. The waiver was made contemporaneously

with the Guaranty and it attempted to waive the right to plead the statute of limitations for an

indefinite period of time. See Code § 8.01-232(A)(ii) and (iii). As the waiver was made when

the parties executed the Guaranty, it was not “made to avoid or defer litigation pending the

settlement of any case.” See Code § 8.01-232(A)(i). Contrary to Code § 8.01-232, the waiver at

issue attempted to permanently waive the right to plead the statute of limitations upon the

execution of the underlying contract, before any controversy regarding that contract existed.

       On appeal, Radiance Capital attempts to distinguish a waiver of the right to plead the

statute of limitations from a promise not to plead the statute of limitations. As Code § 8.01-232

specifically applies to “promises” not to plead the statute of limitations, Radiance Capital

maintains that Code § 8.01-232 is inapplicable to the waiver at issue in this case. This argument

is without merit.

       A “waiver” has been defined as “the intentional relinquishment of a known right, with

both knowledge of its existence and an intention to relinquish it.” Hensel Phelps Constr. Co. v.

Thompson Masonry Contractor, Inc., 292 Va. 695, 702 (2016) (quoting May v. Martin, 205 Va.

397, 404 (1964)). A “promise” is “[t]he manifestation of an intention to act or refrain from

acting in a specified manner, conveyed in such a way that another is justified in understanding

that a commitment has been made.” Black’s Law Dictionary 1466 (11th ed. 2019). Stated



                                                 4
differently, a “promise” is “a person’s assurance that the person will or will not do something.”

Id.

       While a promise generally involves an undertaking to do something in the future, a

waiver of the right to plead the statute of limitations and a promise not to plead the statute of

limitations have the same practical effect. If enforceable, both a waiver of the right to plead the

statute of limitations and a promise not to plead the statute of limitations would bar a party from

asserting a statute of limitations defense. Moreover, when a party intentionally relinquishes its

known right to plead the statute of limitations through a contractual waiver, the party implicitly

makes a promise that it will refrain from pleading the statute of limitations in the future.

       If Code § 8.01-232 only applied to “promises” not to plead the statute of limitations, the

parties to a contract could circumvent the requirements of that statute by simply characterizing a

promise not plead the statute of limitations as a contractual waiver. Despite the specific

requirements of Code § 8.01-232(A), a party could perpetually waive its right to plead the statute

of limitations at the inception of a contract. See 4 Samuel Williston & Richard A. Lord, A

Treatise on the Law of Contracts § 8:44, at 696-97 (4th ed. 2008) (“If a promise not to plead the

statute, made at the inception of the contract, were treated as valid, and ordinary principles of

contracts applied, the creditor would acquire a perpetual cause of action.”). Such a result would

be inconsistent with both Code § 8.01-232 and the policy considerations underlying that statute. 2




       2
         “[S]tatutes of limitation serve an important and salutary purpose.” Burns v. Board of
Supervisors, 227 Va. 354, 359 (1984); see also Bell v. Morrison, 26 U.S. (1 Pet.) 351, 360 (1838)
(describing statutes of limitation as “wise and beneficial” laws). “The object of the statutes of
limitation is ‘to compel the exercise of a right of action within a reasonable time,’ to prevent
surprise and to avoid problems incident to the gathering and presentation of evidence when
claims have become stale.” Truman v. Spivey, 225 Va. 274, 279 (1983) (quoting Street v.
Consumers Mining Corp., 185 Va. 561, 575 (1946)).



                                                  5
       Radiance Capital argues that this Court recognized the validity of a similar contractual

waiver of the right to plead the statute of limitations in Hensel Phelps Construction Co. v.

Thompson Masonry Contractor, Inc., 292 Va. 695 (2016). This argument is misplaced. In

Hensel Phelps, we examined the language of a subcontract between a prime contractor and a

subcontractor and determined that no provision demonstrated that the subcontractor had waived

its right to plead the statute of limitations. See Hensel Phelps, 292 Va. at 702-03. As the

subcontractor failed to waive its right to plead the statute of limitations, we did not determine

whether such a waiver was enforceable pursuant to Code § 8.01-232. Thus, the holding in

Hensel Phelps did not reach the issue presented in this case.

       As the waiver of the right to plead the statute of limitations set forth in the Guaranty

failed to comply with the requirements of Code § 8.01-232, it was not valid under Virginia law.

   B. THE WAIVER CONTAINED IN THE GUARANTY WAS NOT ENFORCEABLE
      UNDER THE EXCEPTION SET FORTH IN CODE § 8.01-232 PERTAINING TO
      ESTOPPEL AND FRAUD

       The first sentence of Code § 8.01-232(A) states “[w]henever 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.” Radiance Capital contends

that the circuit court erroneously construed this sentence of Code § 8.01-232(A). Again, we

disagree with Radiance Capital’s argument.

       In its third assignment of error, Radiance Capital asserts that the circuit court erred by

               finding that [Radiance Capital] must prove by clear and convincing
               evidence that [Foster and Wilson] signed a Commercial Guaranty
               waiving the benefits of any statute of limitations with the
               fraudulent intent to refuse to be bound by the signed waiver as a
               requirement for the waiver to be enforceable under the provisions
               of . . . Code § 8.01-232(A).




                                                  6
Assuming that the circuit court reached the specific conclusions that Radiance Capital alleges in

its assignment of error, 3 it correctly applied the law.

        In Soble v. Herman, 175 Va. 489, 500 (1940), we considered whether the failure to

enforce an oral promise not to plead the statute of limitations “would operate a fraud” on the

promisee. In doing so, we construed Code § 5821, the statutory precursor of Code § 8.01-232.

See Soble, 175 Va. at 499-501. Code § 5821 contained a sentence that was nearly identical to the

first sentence of Code § 8.01-232(A). In pertinent part, Code § 5821 stated “[w]henever the

failure to enforce a promise, written or unwritten, not to plead the statute of limitations would

operate a fraud on the promisee, the promisor shall be estopped to plead the statute.” Id. at 494

(quoting Code § 5821 (1936)).

        In Soble, we noted that the allegation of fraud at issue involved an “unfulfilled oral

promise to pay [a] debt, and the broken promise not to plead the statute of limitations.” Id. at

500. We then recognized, as a “general rule,” that “fraud must relate to a present or pre-existing

fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future

events.” Id. After explaining that “a mere promise to perform an act in the future is not, in a

legal sense, a representation,” id., we concluded that “‘fraud’—as used in the phrase, ‘will

operate a fraud on the promisee’—must relate to a present or preexisting fact and cannot be

established by allegation or proof of a non-fulfilled, naked, oral promise.” Id. at 501 (some

quotation marks omitted). As the allegation of fraud in Soble was based only on unfulfilled




        3
         The circuit court sustained the plea in bar based on the statute of limitations because it
concluded that “the waiver of the statute of limitations that is set forth in the Guaranty is not
valid and enforceable according to the terms of [Code] § 8.01-232.” It did not expressly
determine that the exception contained in the first sentence of Code § 8.01-232(A) was
inapplicable because Radiance Capital failed to prove that Foster and Wilson signed the
Guaranty with the fraudulent intent to refuse to be bound by the waiver at issue.


                                                   7
promises, we held that the appellee was not estopped from pleading the statute of limitations

pursuant to Code § 5821. See id. at 500-01.

       Other cases have illustrated an exception to the holding in Soble. “[I]f a defendant makes

a promise that, when made, he has no intention of performing, that promise is considered a

misrepresentation of present fact and may form the basis for a claim of actual fraud.” SuperValu,

Inc. v. Johnson, 276 Va. 356, 368 (2008). In such cases, “the promisor’s intention—his state of

mind—is a matter of fact.” Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671, 677

(1985). “The gist of fraud in such case[s] is not the breach of the agreement to perform, but the

fraudulent intent.” Patrick v. Summers, 235 Va. 452, 455 (1988) (quoting Lloyd v. Smith, 150

Va. 132, 145 (1928)). When this exception is applied to Code § 8.01-232(A), it establishes that

if a party promises not to plead the statute of limitations without any present intention to be

bound by that promise, the party may be estopped from pleading the statute of limitations in

order to prevent the operation of a fraud on the promisee.

       In the present case, Radiance Capital’s argument pertaining to estoppel based on the

application of the first sentence of Code § 8.01-232(A) rested entirely on Foster’s and Wilson’s

contractual waiver of their right to plead the statute of limitations. Pursuant to Soble, however,

the unfulfilled promises of Foster and Wilson not to plead the statute of limitations were

insufficient in themselves to support an allegation of fraud. See Soble, 175 Va. at 501. Radiance

Capital would have been required to present additional evidence establishing that Foster and

Wilson signed the Guaranty with the fraudulent intent to refuse to be bound by the statute of

limitations waiver in order for Foster and Wilson to be estopped from asserting the statute of

limitations as a defense pursuant to Code § 8.01-232(A). Thus, the circuit court correctly applied




                                                  8
the law regarding Code § 8.01-232(A) and Radiance Capital’s third assignment of error is

without merit.

       As Radiance Capital relied solely on the breach of the statute of limitations waiver

without providing any additional evidence to establish that Foster and Wilson did not intend to

comply with the waiver when they executed the Guaranty, Foster and Wilson were not estopped

from pleading the statute of limitations.

                                       III. CONCLUSION

       For the reasons stated, we conclude that the waiver of the right to plead the statute of

limitations contained in the Guaranty was not valid or enforceable. Accordingly, we affirm the

circuit court’s decision.

                                                                                          Affirmed.




                                                 9
