Present: All the Justices 

SUFFOLK CITY SCHOOL BOARD 

v. Record No. 970414 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

 January 9, 1998 

CONRAD BROTHERS, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Westbrook J. Parker, Judge 

 This appeal arises from a suit by the Suffolk City School 

Board (the Board) against a general contractor engaged to build 

two high schools. The Board alleges that the contractor, Conrad 

Brothers, Inc., installed defective roofs in the schools, 

resulting in damage to both. The trial court ruled that the suit 

was barred by the applicable five-year statute of limitations. 

Code § 8.01-246(2). The issue we consider on appeal is whether 

the trial court erred in this ruling. Specifically, we determine 

when the Board's cause of action accrued pursuant to the 

provisions of Code § 8.01-230. 

 The essential facts are not in dispute. On February 26, 

1986, the Board entered into a contract with Shriver and Holland 

Associates (the architects) to provide architectural services and 

representation throughout the various phases of the planned 

construction of the two high schools (the architects' contract). 

 For purposes of determining the architects' obligations and 

right to compensation, this contract contained a provision that 

"[t]he Construction Phase . . . will terminate when final payment 

to the Contractor is due, or in the absence of a final 

Certificate for Payment or of such due date, sixty days after the 

Date of Substantial Completion of the Work, whichever occurs 
first." On October 14, 1988, the Board entered into two 

separate, but substantially similar, contracts with Conrad 

Brothers as the general contractor for the construction of the 

two high schools under the direction of the architects (the 

construction contracts). The construction contracts fixed the 

time for final completion of construction as the date of issuance 

of a "final Certificate for Payment" by the architects. 

 Thereafter, Conrad Brothers commenced work on both schools 

and the architects issued certificates noting substantial 

completion for both schools as of September 3, 1990. The 

architects' "punch lists" appended to each certificate showing 

what further work was to be completed by the contractor before 

final payment would be authorized included references to 

correction of the defective roofs. On November 27, 1990, and on 

several occasions thereafter, the Board contacted Conrad Brothers 

to report leaks in the roofs of both schools. Conrad Brothers 

received these notices and took steps to remedy the defective 

condition of the roofs. 

 On February 4, 1991, Conrad Brothers submitted to the 

architects an application for final payment with respect to 

construction of both high schools. The architects issued 

certifications for payment of Conrad Brothers to the Board on 

March 13, 1991. The Board filed the present suit against Conrad 

Brothers on February 13, 1996.1 Conrad Brothers filed a plea of 

 

 1 The Board's suit also asserts a negligence claim against 

Conrad Brothers. See Code § 8.01-272 (permitting a party to join 

a claim in tort with one in contract provided that such claims 

arise out of the same transaction or occurrence); see also Code 

§ 8.01-243(B) (providing a five-year limitations period for 
the statute of limitations, asserting that the Board had notice 

of the defective conditions of the roofs on or before September 

12, 1990. 

 Following a hearing on Conrad Brothers' plea, the trial 

court issued a letter opinion in which it referenced the 

previously noted provisions of the architects' contract which 

specified that the "construction phase" of the projects would 

expire sixty days after the issuance of the certificates of 

substantial completion. Determining that this date was November 

2, 1990, the trial court set the commencement of the limitations 

periods at that point. Based upon this determination, the trial 

court held that the statute of limitations ran on November 2, 

1995, more than three months prior to the filing of the Board's 

motion for judgment. A final order was entered on December 4, 

1996, adopting by reference the reasons stated in the trial 

court's initial opinion letter. We awarded the Board this 

appeal. 

 We first consider the trial court's reliance on the terms of 

the architects' contract to determine the termination date of the 

construction contracts. The construction contracts contain 

express terms addressing their duration and termination, and 

nothing within the construction contracts links their termination 

to the termination of the construction phase defined in the 

(..continued) 

actions for injury to property). Because the trial court did not 

specifically address this claim and the parties have not 

addressed it on appeal, we will not address it in this opinion. 

The Board also asserted a claim for breach of contract against 

the architects, but that claim is not a part of this appeal. 
architects' contract. Although using similar terms and related 

to the same projects, the contracts are independent expressions 

of the agreements between the Board and the architects, on the 

one hand, and the Board and Conrad Brothers on the other. 

Accordingly, the trial court's determination that the Board's 

cause of action against Conrad Brothers accrued on November 2, 

1990 pursuant to the architects' contract was in error. Under 

the applicable provisions of the construction contracts the 

construction was complete upon the issuance of a "final 

Certificate for Payment," which did not occur here until March 

13, 1991, less than five years before the litigation was 

commenced. 

 Conrad Brothers asserts, however, that the trial court's 

judgment can be sustained under a "right result, wrong reason" 

analysis. See, e.g., Harrison & Bates, Inc. v. Featherstone 

Associates Ltd. Partnership, 253 Va. 364, 369, 484 S.E.2d 883, 

886 (1997). Conrad Brothers contends that Code § 8.01-230 

abrogates the common law rule permitting a party to an 

indivisible executory contract to elect between pursuing his 

remedy when an action which would constitute a breach occurs or 

awaiting the time fixed by the contract for full and final 

performance. Continuing, Conrad Brothers contends that Code 

§ 8.01-230 provides that the statute of limitations on any cause 

of action for breach of contract involving damage to property 

commences upon the occurrence of the breach, regardless of 

whether the breaching party continues to perform. Thus, in the 

present case, Conrad Brothers asserts that the statute of 
limitations began to run at least prior to November 27, 1990 when 

the Board first acknowledged that the roofs were defective. 

 Prior to the enactment of Code § 8.01-230, the rule with 

respect to the running of a statute of limitations for a breach 

of an indivisible executory contract was clear: 

 In the case of an indivisible or entire contract, 

a party seeking to recover for a breach committed while 

the contract remained executory, or for an anticipatory 

breach committed before expiration of the time agreed 

upon for full and final performance, has the election 

of pursuing his remedy when the breach occurs, or of 

awaiting the time fixed by the contract for full and 

final performance. If he elects the latter course, the 

statute of limitations does not begin to run against 

his right of action until the time for final 

performance fixed by the contract has passed. Andrews 

v. Sams, 233 Va. 55, 58, 353 S.E.2d 735, 738 (1987); 

County School Bd. v. Beiro, 223 Va. 161, 163, 286 

S.E.2d 232, 233 (1982); Simpson v. Scott, 189 Va. 392, 

400, 53 S.E.2d 21, 24 (1949). 

Roberts v. Coal Processing Corp., 235 Va. 556, 561, 369 S.E.2d 

188, 190 (1988).2

 When the present construction contracts were executed, Code 

§ 8.01-230 provided in pertinent part:3

 In every action for which a limitation period is 

prescribed, the cause of action shall be deemed to 

 

 2 Although Roberts and several of the cases cited therein 

were decided after the enactment of Code § 8.01-230, these cases 

dealt with contracts which predated the revision of the Code. 

 3 In 1996, Code § 8.01-230 was amended, and the term "right 

of action" was substituted for "cause of action." The Board has 

concentrated much of its argument on the distinction between 

these two terms, asserting that its "right of action" accrued, 

and, thus, in the Board's estimation, the running of the statute 

of limitations commenced, upon the termination of the 

construction contracts, even if its "cause of action" accrued 

earlier. Cf. Stone v. Ethan Allen, Inc., 232 Va. 365, 368-70, 

350 S.E.2d 629, 631-32 (1986). We express no opinion as to the 

merits of this assertion, as the distinction between the Board's 

"cause" and the "right" of action is not relevant to our 

resolution of this appeal. 
accrue and the prescribed limitation period shall begin 

to run from the date . . . when the breach of contract 

or duty occurs in the case of damage to property and 

not when the resulting damage is discovered . . . . 

 Conrad Brothers' essentially contends that Code § 8.01-230 

eliminates the distinction between divisible and indivisible 

executory contracts. We disagree. 

 The revisers' note to Code § 8.01-230 is instructive here: 

"Section 8.01-230 retains the traditional rule of Virginia case 

law that a cause of action accrues when the wrongful act or 

breach of duty or contract occurs." The express provisions of 

this code section are consistent with the distinction we have 

previously noted between divisible and indivisible contracts in 

determining when a cause of action accrues. Thus, we conclude 

that Code § 8.01-230 merely codified existing law in this respect 

and, accordingly, we reject Conrad Brothers' contention that it 

overruled cases decided under the former common law rule.4

 That 

being so, County School Bd. v. Beiro, 223 Va. 161, 286 S.E.2d 232 

(1982), is almost directly on point with the facts of the present 

case and controls the outcome of this appeal. 

 In Beiro, the owner of a public school building brought an 

action against the contractor claiming damages due to a defective 

 

 4See Roberts, 235 Va. at 242, 368 S.E.2d at 247 

(distinguishing Beiro not on the basis of the intervening 

enactment of Code § 8.01-230 but based on the nature of the 

contract itself). See generally Harris v. K & K Ins. Agency, 249 

Va. 157, 161 at n.*, 453 S.E.2d 284, 286 at n.* (1995)(citing 

Nelson v. Commonwealth, 235 Va. 228, 243, 368 S.E.2d 239, 248 

(1988), and Virginia Military Inst. v. King, 217 Va. 751, 759, 

232 S.E.2d 895, 900 (1977), and noting the distinction between 

contracts divisible into separate and distinct phases and 

contracts not set up in such phases). 
roof. There, as in the present case, the contract was not 

divisible. Although the contractor had completed his work on the 

roof well before the architect issued the certificate of final 

payment, we held that no cause of action accrued until the date 

of that certificate. Beiro, 233 Va. at 163, 286 S.E.2d at 233. 

The circumstances of the present case are indistinguishable and 

the same result must apply.5

 For these reasons, we hold that with respect to Conrad 

Brothers' potential liability for the defective condition of the 

roofs, the five-year statute of limitations commenced upon the 

date of the architects' submission of the "final Certificate[s] 

for Payment" to the Board on March 13, 1991, and, thus, the 

Board's suit was timely filed on February 13, 1996. 

 We will reverse the judgment order of the trial court 

sustaining Conrad Brothers' plea of the statute of limitations 

and remand the case for a trial on the merits. 

Reversed and remanded. 

 

 5 As an alternative position that the Board's cause of 

action for breach of contract accrued on the date of substantial 

completion rather than upon the termination date, Conrad Brothers 

relies upon a post-substantial completion warranty provision 

which, by its express terms, was not to be "construed to 

establish a period of limitation with respect to any other 

obligation" under the contracts. The record is clear, however, 

that at the time the certificate of substantial completion was 

issued, the architects had not accepted the roofs as complete. 

Thus, it is evident that the Board's requests to Conrad Brothers 

to remedy the defective condition of the roofs were merely 

requests for the contractor to comply with its duties under the 

contract, and not notices that a previously accepted condition 

had subsequently been found to be defective and was subject to 

repair under the post-completion warranty.