PRESENT: All the Justices. 

DONALD L. SHIPMAN, INDIVIDUALLY AND 

AS TRUSTEE, ET AL. 

 OPINION BY 

v. Record No. 030500 JUSTICE G. STEVEN AGEE 

 MARCH 5, 2004 

FREDERICK R. KRUCK, JR., ESQ. 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

John E. Kloch, Judge 

The determinative issue in this appeal is when the 

appellants’ cause of action for legal malpractice accrued for 

purposes of the statute of limitations. 

I. BACKGROUND AND PROCEEDINGS BELOW 

 On January 16, 1998, Donald L. Shipman and his wife, Kym L. 

Shipman (collectively, “the Shipmans”) hired Frederick H. Kruck, 

Jr. (“Kruck”) to defend them in an action brought by one of the 

Shipmans’ creditors. The Shipmans informed Kruck that shielding 

their residence from the collection efforts of creditors was 

their primary objective. The Shipmans also informed Kruck that 

the residence was held in trust under a 1984 Declaration of 

Trust (“the Trust”). The Shipmans gave Kruck an unsigned and 

undated copy of the Declaration of Trust, reflecting Mr. Shipman 

was the Trust’s trustee holding the trust property for the 

benefit of Mrs. Shipman and their children. The Shipmans had 
conveyed their residence by deed to Mr. Shipman as Trustee under 

the Trust.1

On March 9, 1998, Kruck filed a joint Chapter 7 petition on 

behalf of the Shipmans in the United States Bankruptcy Court for 

the Eastern District of Virginia. The Shipmans agreed to the 

bankruptcy filing based on Kruck’s advice. 

Kruck represented the Shipmans in the initial stages of the 

bankruptcy proceedings, but certain of the Shipmans’ creditors 

and the Bankruptcy Trustee asserted the Trust was revocable and 

therefore the Trust’s assets were nonexempt property of the 

Shipmans’ bankruptcy estate subject to sale and administration 

by the Bankruptcy Trustee. On January 19, 1999, Kruck withdrew 

as the Shipmans’ counsel and advised them that he would be more 

valuable as a witness in the bankruptcy proceedings concerning 

the Trust. The Shipmans promptly hired new counsel to represent 

them in the bankruptcy proceedings.2

During the subsequent bankruptcy proceedings Kruck 

testified that he erroneously assessed the trust documents as 

establishing an irrevocable trust when he advised the Shipmans 

 1

 By an examination of land title records, Kruck verified 

the real estate conveyances to the trust, but found no copy of 

the trust document on record. 

2

 The parties disagree as to whether new counsel was hired 

explicitly to cure Kruck’s negligence. Our resolution of this 

case does not depend on why, or even if, the Shipmans hired new 

counsel. 

2
to file bankruptcy. On March 8, 2000, the bankruptcy court 

entered an order declaring the Trust to be a revocable trust and 

authorizing the Bankruptcy Trustee to sell the Shipmans’ 

residence as an asset of the bankruptcy estate for the payment 

of the Shipmans’ creditors. To prevent their residence from 

being sold to a third party, the Shipmans purchased the 

residence for $427,000 from the Bankruptcy Trustee on June 29, 

2001. 

On January 8, 2002, the Shipmans filed a motion for 

judgment against Kruck in the Circuit Court of the City of

Alexandria alleging counts for negligence, breach of contract, 

and negligent infliction of emotional distress. They asserted 

that Kruck was negligent in failing to advise them that the 

Trust was revocable and could be revoked by the Bankruptcy 

Trustee if they filed for bankruptcy. Kruck filed a demurrer 

and plea in bar alleging the Shipmans lacked standing to bring 

their suit because any claims they might have belonged to the 

bankruptcy estate and must be asserted by the Bankruptcy 

Trustee. Before argument on Kruck’s demurrer and plea in bar 

the Shipmans requested a nonsuit which the trial court granted 

on March 12, 2002. 

The Shipmans then requested and received an order from the 

bankruptcy court abandoning any interest in an action for 

malpractice against Kruck as part of the bankruptcy estate. 

3
Armed with the abandonment order, the Shipmans filed a new 

motion for judgment against Kruck on September 11, 2002, in 

which they renewed the counts for negligence and breach of 

contract. Kruck filed another demurrer and plea in bar alleging 

that the Shipmans’ action was barred by the three-year statute 

of limitations applicable to breach of an oral contract. He 

asserted that the limitations period expired on January 19, 

2002, three years after Kruck’s representation of the Shipmans 

terminated. 

The trial court determined that because the action was 

based upon an oral contract, the applicable statute of 

limitations period was three years. The trial court further 

held that the Shipmans’ cause of action accrued when Kruck’s 

representation of the Shipmans terminated on January 19, 1999, 

and that filing the nonsuit did not toll the running of the 

statute of limitations. Therefore, the trial court sustained 

Kruck’s plea in bar.3

The Shipmans filed a motion for reconsideration alleging a 

written contract existed (and thus the correct limitations 

period was five years) and that their legal malpractice claim 

did not accrue until there was payment on a judgment creating 

damages. The trial court denied the motion, ruling the Shipmans 

 3

 The trial court did not rule on Kruck’s demurrer and the 

Shipmans did not assign error to the trial court’s ruling on the 

effect of the nonsuit. 

4
failed to prove the existence of a written contract and that, in 

any event, it was not pled. With regard to the accrual issue, 

the trial court held that the Shipmans’ cause of action accrued 

“when counsel was retained and paid,” referring to the counsel 

substituted for Kruck. 

On appeal, the Shipmans assert two assignments of error. 

First, they contend the trial court erred in granting Kruck’s 

plea in bar and denying their motion for reconsideration because 

their action was filed within the applicable three year 

limitations period.4

 Second, they assert the trial court erred 

in holding that their cause of action accrued when Kruck’s 

representation of them ended and new counsel was retained and 

paid because there was no evidence in the record as to when new 

counsel was paid. 

II. STANDARD OF REVIEW 

“A cause of action for legal malpractice requires the 

existence of an attorney-client relationship which gave rise to 

a duty, breach of that duty by the defendant attorney, and that 

the damages claimed by the plaintiff client must have been 

proximately caused by the defendant attorney’s breach.” Rutter

v. Jones, Blechman, Wolz and Kelly, 264 Va. 310, 313, 568 S.E.2d 

 4

 No assignment of error was made to the trial court’s 

ruling that the five year statute of limitations applicable to 

written contracts did not apply. The parties now agree the 

applicable statute of limitations is three years, the period 

applicable to oral contracts. 

5
693, 695 (2002). The statute of limitations for legal 

malpractice actions is the same as those for breach of contract 

because although legal malpractice actions sound in tort, it is 

the contract that gives rise to the duty. MacLellan v.

Throckmorton, 235 Va. 341, 343, 367 S.E.2d 720, 721 (1988); 

Oleyar v. Kerr, 217 Va. 88, 90, 225 S.E.2d 398, 400 (1976)); see

also Code § 8.01-246 (setting forth the limitations periods for 

breach of contract actions). 

III. ANALYSIS 

The parties agree the alleged negligent act, the breach of 

Kruck’s duty to the Shipmans, occurred when the bankruptcy 

petition was filed on March 9, 1998. The parties differ, 

however, in affixing the date when the statute of limitations on 

the Shipmans’ legal malpractice action accrued. 

Code § 8.01-230 states, in pertinent part, that “[i]n every 

action for which a limitation period is prescribed, the right of 

action shall be deemed to accrue and the prescribed limitation 

period shall begin to run . . . when the breach of contract 

occurs in actions ex contractu and not when the resulting damage 

is discovered.” We have previously stated that “[a] right of 

action is a remedial right to presently enforce a cause of 

action.” Stone v. Ethan Allen, Inc., 232 Va. 365, 368, 350 

S.E.2d 629, 631 (1986). Although a cause of action and a right 

6
of action may accrue simultaneously, a right of action cannot 

arise until a cause of action exists. Id.

The Shipmans contend that until the bankruptcy court 

finally adjudicated the Trust to be revocable and therefore a 

nonexempt part of the Shipmans’ bankruptcy estate, they had no 

cause of action (and thus no right of action) against Kruck. 

This is so, the Shipmans contend, because until that point in 

time they had no injury or damages − an essential element of a 

legal malpractice cause of action. Alternatively, citing Allied

Productions v. Duesterdick, 217 Va. 763, 232 S.E.2d 774 (1977),

the Shipmans argue there could be no damages until there was 

payment on an underlying judgment under the so-called “payment 

rule.” The Shipmans contend the “payment” did not occur, and 

the limitations period did not begin to run, until June 29, 

2001, when they purchased their residence from the Bankruptcy 

Trustee to prevent its sale. 

Kruck asserts the statute of limitations began to run when 

the bankruptcy petition was filed, subject to the “continuous 

representation rule” set forth in Keller v. Denny, 232 Va. 512, 

352 S.E.2d 327 (1987). 

A. DETERMINATION OF INJURY 

The parties agree that Kruck breached his duty to the 

Shipmans on March 9, 1998, when the bankruptcy petition was 

filed. The issue in controversy is whether on that date, or at 

7
a later time, the Shipmans sustained injury or damage sufficient 

to constitute a cause of action. 

We have stated on more than one occasion that “[d]amage is 

an essential element of a cause of action. Without some injury 

or damage, however slight, a cause of action cannot accrue.” 

Keller, 232 Va. at 520, 352 S.E.2d at 332; see Stone, 232 Va. at 

365, 368-69, 350 S.E.2d at 631-32; accord First Va. BankColonial v. Baker, 225 Va. 72, 82, 301 S.E.2d 8, 13-14 (1983); 

Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900, 

904 (1981); Caudill v. Wise Rambler, 210 Va. 11, 13, 168 S.E.2d 

257, 259 (1969). “In the absence of any injury or damage, there 

is no cause of action.” Rutter, 254 Va. at 313, 568 S.E.2d at 

695. Moreover, we have said that it is immaterial whether all 

the damages resulting from the negligent act were sustained at 

the time that act occurred. The running of the limitations 

period will not be tolled by the fact that the actual or 

substantial damages did not occur until a later date. Stone, 

232 Va. at 369, 350 S.E.2d at 632; Housing Authority v. Laburnum

Corp., 195 Va. 827, 839, 80 S.E.2d 574, 581 (1954)). 

 In Virginia, 

[w]e have followed the general rule that the 

applicable period of limitation begins to run 

from the moment the cause of action arises rather 

than from the time of discovery of injury or 

damage, and we have said that difficulty in 

ascertaining the existence of a cause of action 

is irrelevant. 

8
Virginia Military Institute v. King, 217 Va. 751, 759, 232 

S.E.2d 895, 900 (1977) (hereinafter “VMI”) (citing Laburnum, 195 

Va. at 838, 80 S.E.2d at 580-81). In VMI we commented that this 

rule may produce inequities by triggering a statute of 

limitations “when the injury or damage is unknown or difficult 

or even incapable of discovery . . . .” Id. at 760, 232 S.E.2d 

at 900. Nevertheless, we concluded that it was the role of the 

General Assembly, not the judiciary, to change a rule of law 

that has been relied upon by bench and bar for so long. Id. We 

continue to adhere to that principle. Under Code § 8.01-230 the 

injury is deemed to accrue “when the breach of contract occurs 

. . . not when the resulting damage is discovered.” 

Upon the filing of the bankruptcy petition the Shipmans 

incurred a legal injury. Although the injury could not be 

delineated as a sum certain or reflected as a final judgment on 

the merits, there was injury sufficient to commence a cause of 

action for legal malpractice. First and foremost, the Shipmans 

lost control of their assets to the Bankruptcy Trustee, 

including the power to revoke the Trust and receive the 

reversion. The filing of the bankruptcy, in and of itself, 

vested those rights in the Bankruptcy Trustee as a matter of 

law. 11 U.S.C. §§ 541, 542, 544, 704 (2000). This injury in 

particular countermanded their express wishes to protect the 

9
Trust property from their creditors. Even the Shipmans’ right 

to bring a legal malpractice claim vested in the Bankruptcy 

Trustee, which necessitated their initial nonsuit. See National

Am. Ins. Co. v. Ruppert Landscaping Co., 187 F.3d 439, 441 (4th 

Cir. 1999) (“If a cause of action is part of the estate of the 

bankrupt then the trustee alone has standing to bring that 

claim.”); Ellwanger v. Budsberg, 140 Bankr. 891, 903 (Bankr. 

W.D. Wash. 1992) (state court actions for legal malpractice are 

property of the bankruptcy estate); Scarlett v. Barnes, 121 

Bankr. 578, 579 (W.D. Mo. 1990) (state court actions for legal 

malpractice are property of the bankruptcy estate). Further, 

the Shipmans admitted in their motion for judgment that in 

addition to the costs of repurchasing their residence, they 

incurred “additional costs in legal fees, litigation costs, and

other costs associated with the bankruptcy filing and 

litigation.” (Emphasis added). The Shipmans’ own pleadings 

thus admit that the filing fee for the bankruptcy itself is a 

recoverable damage.5

 As we note below, these damages need only 

be incurred, not paid. 

The unity of duty, breach, and damage required to establish 

a cause of action occurred on March 9, 1998, when the bankruptcy 

petition was filed. It was at that time the Shipmans’ cause of 

 5

 The Shipmans also allege their credit rating was damaged 

by the bankruptcy filing. 

10
action against Kruck attached, albeit vested in the Bankruptcy 

Trustee. Having determined that the Shipmans’ cause of action 

existed as of the time the bankruptcy was filed, the question 

then becomes, under Code § 8.01-230, whether the Shipmans’ right 

of action came into existence simultaneously with their cause of 

action or whether it accrued at another time. 

B. THE CONTINUOUS REPRESENTATION RULE 

Code § 8.01-230 dictates the right of action shall accrue 

at the time of the breach. Thus, in this case, the Shipmans’ 

right of action came into existence and their cause of action 

accrued contemporaneously with the filing of the bankruptcy 

petition. In other words, the Shipmans could have brought an 

action against Kruck at any time after the bankruptcy petition 

was filed. However, that does not necessarily establish the 

date the statute of limitations began to run for purposes of a 

legal malpractice action. In Keller we held that 

when malpractice is claimed to have occurred 

during the representation of a client by an 

attorney with respect to a particular undertaking 

or transaction, the breach of contract or duty 

occurs and the statute of limitations begins to 

run when the attorney’s services rendered in 

connection with that particular undertaking or 

transaction have terminated. 

Keller, 232 Va. at 518, 352 S.E.2d 330. This axiom is commonly 

termed the “continuous representation rule,” which takes into 

consideration the special trust and confidence inherent in the 

11
attorney-client relationship. Id. at 518, 352 S.E.2d at 331. 

“The relationship between a lawyer and his client is a fiduciary 

relationship, one which commands the highest fidelity to a most 

solemn trust, for the lawyer is the expert and the client is 

utterly dependent upon his knowledge, his skill, and his honor.” 

Duesterdick, 217 Va. at 767, 232 S.E.2d at 776-77 (Poff, J., 

dissenting); see also MNC Credit Corp. v. Sickels, 255 Va. 314, 

318, 497 S.E.2d 331, 333 (1998) (noting “the highly confidential 

and fiduciary relationship between an attorney and client”).6

In Keller we made clear that the continuous representation 

rule applies “only when a continuous or recurring course of 

professional services relating to a particular undertaking is 

shown to have taken place over a period of time.” Keller, 232 

Va. at 518, 352 S.E.2d at 331. The proper inquiry is not 

whether a general attorney-client relationship has ended, but 

instead, when the attorney’s work on the particular undertaking 

at issue has ceased. Id. If malpractice is alleged with 

respect to “a single, isolated act, Code § 8.01-230 . . . 

 6

 Code § 8.01-230 was amended in 1996. However, the changes 

do not materially affect the issue under consideration here and 

the statute as amended does not explicitly abrogate the 

continuous representation rule this Court expressed in Keller. 

See Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 

730 (2001) ("When the General Assembly acts in an area in which 

one of its appellate courts already has spoken, it is presumed 

to know the law as the court has stated it and to acquiesce 

therein, and if the legislature intends to countermand such 

appellate decision it must do so explicitly.") 

12
dictates that the statute of limitations begins to run when that 

act is performed, regardless of the time of its discovery.” Id.

at 518-19, 352 S.E.2d at 331. 

Applying the criteria of the continuous representation rule 

to the case at bar the record reflects that the attorney-client 

relationship between Kruck and the Shipmans was for the 

particular undertaking concerning the creditor’s action and the 

resulting bankruptcy. Kruck’s advice to the Shipmans to file 

for bankruptcy was an important and integral part of his 

representation in that matter. For statute of limitations 

purposes, the continuous representation rule effectively tolled 

the accrual of the statute of limitations for the Shipmans’ 

cause of action from the filing of bankruptcy until January 19, 

1999, the date Kruck’s representation terminated regarding the 

particular undertaking for which he was engaged. 

For purposes of the continuous representation rule, it is 

irrelevant whether substitute counsel is acquired or when that 

occurs. The date the alleged negligent attorney’s 

representation of the client terminates is the relevant date 

which commences the running of the statute of limitations. 

Unless another rule of law tolls the accrual date further, the 

Shipmans thus had until January 19, 2002, to timely file their 

legal malpractice claim against Kruck. 

13
C. THE “PAYMENT RULE” 

In Duesterdick this Court held that a motion for judgment 

asserting legal malpractice that fails to allege actual damages 

fails to state a cause of action, and is demurrable. 

[W]hen a client has suffered a judgment for money 

damages as the proximate result of his lawyer's 

negligence such judgment constitutes actual 

damages recoverable in a suit for legal 

malpractice only to the extent such judgment has 

been paid. Here, the motion for judgment failed 

to allege such actual damages. It failed, 

therefore, to state a cause of action, and the 

trial court correctly sustained the demurrer. 

217 Va. at 766, 232 S.E.2d at 776. The Shipmans aver that our 

decisions in Duesterdick and Rutter stand for the “payment 

rule,” which they construe to mean “that a cause of action for 

legal malpractice does not accrue until there is actual injury 

or damages, and there is, at a minimum, a judgment in any 

underlying litigation on an issue central to the malpractice 

claim.” They argue that the outcome in Rutter was based on this 

view of the Duesterdick “payment rule.” 

According to the Shipmans, application of the “payment 

rule” means the statute of limitations did not begin to run 

until they had suffered a judgment (the bankruptcy court’s March 

8, 2000 order declaring the Trust revocable) and they had made 

payment on that judgment by purchasing the residence from the 

Bankruptcy Trustee on June 29, 2001. The Shipmans thus contend 

they had three years from that date, until June 29, 2004, to 

14
bring their malpractice action. Since Kruck’s alleged breach of 

duty occurred on March 8, 1998 with the filing of the bankruptcy 

petition, the Shipmans’ “payment rule” would allow them to file 

their malpractice claim more than six years after the breach. 

Kruck responds that Duesterdick is “not a statute of 

limitations or accrual case but instead simply stands for the 

proposition that attorneys are only liable for actual damages 

which their errors proximately cause their clients to incur.” 

Moreover, Kruck asserts the “payment rule” only applies “when a 

client has suffered a judgment for money damages as the 

proximate result of his lawyer’s negligence.” Duesterdick, 217 

Va. at 766, 232 S.E.2d at 776. 

Neither Duesterdick nor Rutter involved a statute of 

limitations issue. In Duesterdick, the trial court sustained a 

demurrer to a motion for judgment which failed to sufficiently 

plead damages. The motion for judgment did not allege the 

plaintiff had made any payment upon a default judgment which was 

the basis of the alleged legal malpractice. In affirming the 

trial court, we never considered the statute of limitations in 

any way. 

Rutter involved a legal malpractice claim brought by the 

executor of an estate against a law firm that had drafted the 

decedent’s will and trust documents. The estate alleged that 

the testamentary documents failed to distribute charitable 

15
donations according to the decedent’s wishes, resulting in a 

significant estate tax liability. The estate contended a cause 

of action against the law firm arose during the decedent’s 

lifetime because she was entitled to recover the fees paid to 

the law firm for drafting defective testamentary documents. We 

held, however, that the additional amount of estate tax, not the 

fee decedent paid to the attorneys, was the injury or damage 

proximately caused by the legal malpractice. Rutter, 264 Va. at 

314, 568 S.E.2d at 695. Therefore, no cause of action came into 

existence during the decedent’s lifetime as to the estate tax 

liability and thus the claim did not survive her death. Id.

The distinctly different interpretations of the “payment 

rule” expressed by the litigants illustrates the difficulty in 

construing our holding in Duesterdick with our decisions in 

Stone, Laburnum, VMI, and Keller and other cases for purposes of 

the accrual of the statute of limitations. If, as we have 

consistently held, even slight damage sustains a cause of 

action, it is difficult to discern how the existence of a cause 

of action can be postponed until some payment in partial or 

whole satisfaction of the client’s damage has occurred. The 

infirmities of such a rule are obvious. 

First and foremost, adherence to a payment rule would vest 

the aggrieved client with the power to forestall the running of 

the statute of limitations by the deferral of payment, 

16
regardless of whether he has already suffered damages sufficient 

to give rise to his cause of action. It is the legislature that 

decides when causes of action shall accrue, not plaintiffs. 

Second, such a rule does not protect a client who, due to 

bankruptcy or insolvency, cannot afford to pay whatever damage 

he has suffered. “If the client has no cause of action until he 

has paid the judgment against him, then the larger the judgment, 

the greater the client’s burden and the lawyer’s impunity; the 

greater the injury wrongfully inflicted, the less the liability 

of the wrongdoer.” Duesterdick, 217 Va. at 767, 232 S.E.2d at 

777 (Poff, J., dissenting). 

Finally, the “payment rule”, in a statute of limitations 

context, would work an injustice on attorneys who may be forced 

to defend allegations of malpractice brought many years after 

the alleged breach occurred, dependent entirely upon the ability 

or whim of the complaining client to pay the resulting damages. 

In this regard the “payment rule” defeats the primary objectives 

of statutes of limitations, such as compelling “the exercise of 

a right of action within a reasonable time,” Street v. Consumers

Min. Corp., 185 Va. 561, 575, 39 S.E.2d 271, 277 (1946), 

preventing surprise, and avoiding problems “incident to the 

gathering and presentation of evidence when claims have become 

stale.” Truman v. Spivey, 225 Va. 274, 279, 302 S.E.2d 517, 519 

17
(1983). Application of the “payment rule” to the facts of the 

case at bar, as the Shipmans urge, illustrates these defects. 

Even if we determined that when the Shipmans hired the 

second attorney they incurred legal fees, and thus damages 

sufficient to establish a cause of action, there is no 

indication in the record as to when those fees were paid. If 

they had given a retainer to that attorney on their first visit, 

presumably the “payment rule” would then be satisfied and their 

cause of action would begin to accrue. Suppose, instead, the 

Shipmans did not pay their attorney for six months, one year, or 

longer. Such a scenario exemplifies why the payment rule would 

frustrate the will of the legislature and circumvent the 

objectives of the statutes themselves if made applicable in a 

statute of limitations context. 

In the context of a judgment entered against a client by 

virtue of his attorney’s purported negligence, we said in 

Duesterdick, “until the client has made a payment on that debt 

he has suffered no actual loss or damage.” 217 Va. at 766, 232 

S.E.2d at 776. For the reasons set forth above, we conclude 

that this is an incorrect statement of law. As Justice Poff 

stated in his dissent in Duesterdick, a client who suffers the 

entry of a judgment against him indeed suffers a legal injury or 

damage. 

18
There is little remote, speculative, or 

contingent about a money judgment. Indeed, it is 

a legal creature of singular dignity. Such a 

judgment calls into existence what did not exist 

before, viz., a liquidated debt. Except for 

jurisdictional defect, that judgment and the debt 

it creates cannot be collaterally attacked and is 

actionable in every state. The recorded judgment 

constitutes a continuing lien (securing the debt 

and the interest as it accrues) on the debtor’s 

assets (presently owned and later acquired), a 

lien that is enforceable by public sale. Subject 

to the statute of limitations, the debt survives 

the debtor’s death and may be revived against his 

personal representative. Code § 8-396 (Cum. 

Supp. 1976). Some judgments, such as that 

suffered by the client here, survive bankruptcy. 

11 U.S.C. § 35. 

Id., 217 Va. at 768, 232 S.E.2d at 777. 

Accordingly, our prior decision in Duesterdick is overruled 

and cannot be viewed as supporting the Shipmans’ argument, which 

we reject. 

IV. CONCLUSION 

“When the trial court has reached the correct result for 

the wrong reason, we will assign the correct reason and affirm 

that result.” Mitchem v. Counts, 259 Va. 179, 191, 523 S.E.2d 

246, 253 (2000); accord Hartzell Fan, Inc. v. Waco, Inc., 256 

Va. 294, 303, 505 S.E.2d 196, 202 (1998); Ridgwell v. Brasco Bay

Corp., 254 Va. 458, 462, 493 S.E.2d 123, 125 (1997); Harrison &

Bates, Inc. v. Featherstone Assoc. Ltd. Partnership, 253 Va. 

364, 369, 484 S.E.2d 883, 886 (1997). Although the trial court 

was initially correct in its ruling from the bench, it later 

19
20

held, incorrectly, that the Shipmans’ cause of action accrued

“when counsel was retained and paid.” 

 For the reasons stated above, the Shipmans’ cause of action 

for legal malpractice accrued at the time of the attorney’s 

breach, subject to the continuous representation rule.7

 

Therefore, the Shipmans failed to timely prosecute their claim 

against Kruck and the trial court correctly granted Kruck’s plea 

in bar. We will therefore affirm the judgment of the trial 

court. 

Affirmed. 

 

 

 7

 No argument was made in the present litigation concerning 

any tolling effect of the bankruptcy on the Shipmans’ 

malpractice claim under federal law or Code § 8.01-229, or 

concerning the statute of limitations effect on the nonsuit of 

the original motion for judgment. Hence, we express no opinion 

on such arguments in the present disposition.