Present: All the Justices 

BRENDA P. CUMMINGS, 

T/A KALEIDOSCOPE 

v. Record No. 000115 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 12, 2001 

JEAN S. FULGHUM 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 In this appeal, we consider whether a plea of recoupment 

under Code § 8.01-422 is subject to a statute of limitations 

defense raised by a plaintiff in an action to enforce payment of 

a note. 

 The following facts are undisputed. On December 3, 1997, 

Jean S. Fulghum filed a motion for judgment against Brenda P. 

Cummings to enforce payment of a promissory note secured by a 

deed of trust. Cummings and her late husband, Kenneth V. 

Cummings, Jr., had executed the note pursuant to a March 1987 

contract between the Cummingses and a construction contractor, 

Larry W. Primm (Primm), and his corporation, Larry W. Primm 

Construction, Inc. (Primm Construction). Under the terms of the 

contract, the Cummingses agreed to purchase from Primm 

Construction a parcel of land on which Primm agreed to construct 

certain improvements. The contract provided that $45,000 of the 

purchase price for the land was to be secured by a deed of trust 

on the property, accompanied by a note made payable to Primm. 
 On December 21, 1987, the Cummingses executed the deed of 

trust and a note made payable "to Larry W. Primm, or order." In 

the note, the Cummingses agreed to make monthly payments of 

interest only for a term of six years, beginning on the date of 

"completion of the improvements on the property," with the 

principal balance and any unpaid interest due at the end of this 

six-year term. Primm later assigned the note to Fulghum and her 

late husband, Arthur T. Fulghum, III. A building was 

constructed on the property and on October 11, 1990, the County 

of Chesterfield issued a certificate of occupancy permitting use 

of the building. 

 Fulghum's motion for judgment alleged that Cummings was in 

default under the terms of the note. Fulghum asserted that this 

default occurred based on Cummings's alleged failure to pay the 

principal sum due on October 11, 1996, six years after the date 

the certificate of occupancy was issued, and failure to make 

monthly interest payments from November 1990 through November 

1997. Fulghum sought payment of the principal sum due plus 

interest owed under the terms of the note. 

 On December 30, 1997, Cummings filed a grounds of defense 

in which she alleged that Primm, the original note holder, had 

breached his contract with her, causing her to suffer damages in 

an amount greater than the amount Fulghum was seeking to 

recover. Cummings requested that the action against her be 

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dismissed. In response, Fulghum filed a "Plea of Statute of 

Limitations" stating that Cummings's "claim of damages" was 

barred by the statute of limitations. 

 After hearing argument on the nature of Cummings's 

pleadings, the trial court concluded that Cummings had pleaded 

recoupment under Code § 8.01-422. The trial court held that 

Cummings's statutory recoupment plea was subject to the statute 

of limitations plea asserted by Fulghum and was time-barred. In 

articulating its ruling, the trial court expressly relied on 

Neely v. White, 177 Va. 358, 14 S.E.2d 337 (1941). After 

further proceedings on the merits of the motion for judgment, 

the trial court entered final judgment in favor of Fulghum and 

ordered Cummings to pay the principal amount due on the note, 

with interest as specified in the judgment order. 

 On appeal, Cummings argues that a plea of recoupment 

asserted under Code § 8.01-422 is not subject to a plea of the 

statute of limitations. She contends that our decision in Neely

does not resolve this issue because Neely was decided under 

statutes that differ substantially from the provisions of Code 

§ 8.01-422. She asserts that "as a result of the substantive 

changes made to the statutes by the General Assembly in 1954, 

this Court's holding in Neely has become one of historical 

interest only." 

3
 In response, Fulghum argues that a statutory recoupment 

plea has the characteristics of an action at law that 

effectively is initiated when the plea is filed. Therefore, she 

contends that the five-year statute of limitations of Code 

§ 8.01-246 applicable to written contracts bars Cummings's 

statutory recoupment plea. Fulghum asserts that although the 

statutes we considered in Neely have been amended, Code § 8.01-

422 should be applied in the same manner as its predecessor 

statute was applied in Neely, because Code § 8.01-422 is "almost 

identical" to that former statute. We disagree with Fulghum's 

arguments. 

 Under basic rules of statutory construction, we examine a 

statute in its entirety, rather than by isolating particular 

words or phrases. Earley v. Landsidle, 257 Va. 365, 369, 514 

S.E.2d 153, 155 (1999); Ragan v. Woodcroft Village Apartments, 

255 Va. 322, 325, 497 S.E.2d 740, 742 (1998); Buonocore v. C&P 

Telephone Co., 254 Va. 469, 472-73, 492 S.E.2d 439, 441 (1997). 

When the language in a statute is clear and unambiguous, we are 

bound by the plain meaning of that language. Earley, 257 Va. at 

370, 514 S.E.2d at 155; Ragan, 255 Va. at 326, 497 S.E.2d at 

742; Harrison & Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 

368, 484 S.E.2d 883, 885 (1997). We must determine the General 

Assembly's intent from the words appearing in the statute, 

unless a literal construction of the statute would yield an 

4
absurd result. Earley, 257 Va. at 369, 514 S.E.2d at 155; 

Ragan, 255 Va. at 325-26, 497 S.E.2d at 742; Abbott v. Willey, 

253 Va. 88, 91, 479 S.E.2d 528, 530 (1997). 

 In a contract action, the pleading of statutory equitable 

defenses, including the defense of statutory recoupment, is 

governed by Code § 8.01-422, which provides: 

 In any action on a contract, the defendant may file a 

pleading, alleging any matter which would entitle him to 

relief in equity, in whole or in part, against the 

obligation of the contract; or, if the contract be by deed, 

alleging any such matter arising under the contract, 

existing before its execution, or any such mistake therein, 

or in the execution thereof, or any such other matter as 

would entitle him to such relief in equity; and in either 

case alleging the amount to which he is entitled by reason 

of the matters contained in the pleading. If the amount 

claimed by the defendant exceed the amount of the 

plaintiff's claim the court may, in a proper case, give 

judgment in favor of the defendant for such excess. 

The language of this statute is clear and unambiguous. We 

review its plain language in conjunction with our holding in 

Neely to determine whether that holding is applicable to a 

recoupment plea under Code § 8.01-422. 

 In Neely, we considered whether a plea of statutory 

recoupment under former Code § 6145, a predecessor statute to 

Code § 8.01-422,1 was subject to a plea of the statute of 

limitations. We observed that the "entire subject of statutory 

 1

Former Code § 6145 was recodified in 1950 as former Code 

§ 8-241, which was amended in 1954. Code § 8.01-422 represents 

the 1977 recodification of former Code § 8-241, as amended in 

1954. 

5
recoupment" was at that time "embraced in Chapter 255 of the 

Code," which included both former Code §§ 6145 and 6149. 177 

Va. at 364, 14 S.E.2d at 339. 

 Former Code § 6145 provided, in material part: 

 In any action on a contract, the defendant may file a plea, 

alleging . . . [any] matter as would entitle him . . . to 

relief in equity, in whole or in part, against the 

obligation of the contract. . . . 

Pleas asserted under this provision were subject to defenses 

allowed by former Code § 6149, which provided, in material part: 

 A defendant who files a plea . . . under this chapter shall 

be deemed to have brought an action, at the time of filing 

such plea . . . against the plaintiff[;] . . . the 

defendant's claim shall be open to the same ground of 

defense to which it would have been open in any action 

brought by him thereon. 

 After considering the language of former Code §§ 6145 and 

6149, we held in Neely that these statutes treated a statutory 

recoupment plea as an "action" subject to the same defenses as 

any other action, including a plea of the statute of 

limitations. 177 Va. at 364, 14 S.E.2d at 340. We stated that 

"[b]y [former] Code § 6149, the defendant filing a special plea 

under this chapter is put on the footing of a plaintiff and is 

deemed to have brought an action against the plaintiff at the 

time of filing his plea." Id. Thus, our holding in Neely, that 

a plea of statutory recoupment under former Code § 6145 was 

subject to a plea of the statute of limitations, was based 

directly on former Code § 6149. 

6
 Former Code § 6149, however, was substantially amended in 

1954 after being recodified as former Code § 8-244. These 

amendments limited the application of former Code § 8-244 to 

counterclaims and cross-claims, as set forth in relevant part: 

A defendant who pleads a counterclaim or cross-claim 

shall be deemed to have brought an action at the time 

he files such pleading, provided that if the subject 

matter of the counterclaim arises out of the same 

transaction or occurrence upon which the plaintiff's 

claim is based, the statute of limitations with 

respect to such counterclaim shall be tolled by the 

commencement of the plaintiff's action. 

 Former Code § 8-244 was recodified in 1977 as Code § 8.01-

233, which retained the substance of former Code § 8-244 and 

contained a new provision including cross-claims in its 

statutory tolling provision.2 Therefore, Code § 8.01-233 has no 

bearing on the statute of limitations issue before us, because a 

recoupment plea asserted under Code § 8.01-422 is not a 

counterclaim or a cross-claim within the meaning of Code § 8.01-

233. 

 Based on this statutory history, we examine our holding in 

Neely in light of the General Assembly's later actions. When a 

 2

Code § 8.01-233 provides: 

 A. A defendant who pleads a counterclaim or cross-claim 

shall be deemed to have brought an action at the time he files 

such pleading. 

 B. If the subject matter of the counterclaim or crossclaim arises out of the same transaction or occurrence upon 

which the plaintiff's claim is based, the statute of limitations 

with respect to such pleading shall be tolled by the 

commencement of the plaintiff's action. 

7
statute or a group of statutes has been revised, and the General 

Assembly has omitted provisions formerly enacted, the parts 

omitted may not be revived by construction, but must be 

considered as annulled. Richmond-Ashland Ry. Co. v. 

Commonwealth, 162 Va. 296, 305, 173 S.E. 892, 896 (1934); 

Western Assurance Co. v. Stone, 145 Va. 776, 785, 134 S.E. 710, 

713 (1926). A contrary holding would impute to the General 

Assembly gross carelessness or ignorance, which is wholly 

impermissible. Western Assurance, 145 Va. at 785, 134 S.E. at 

713. Thus, to depart from the meaning expressed by the language 

of a revised statute or group of statutes is to change the 

statutes, to legislate and not to interpret. See Greenberg v. 

Commonwealth, 255 Va. 594, 600, 499 S.E.2d 266, 269 (1998); 

Faulkner v. Town of South Boston, 141 Va. 517, 524, 127 S.E. 

380, 382 (1925). 

 Under former Code § 6149, certain equitable defenses, 

including the defense of statutory recoupment, were subject to 

"the same ground[s] of defense" ordinarily asserted in actions 

at law. That restriction on equitable defenses was removed by 

the General Assembly when it deleted from the successor statutes 

to former Code § 6149 the provision that statutory equitable 

defenses shall be deemed an "action" and be subject to any 

grounds of defense applicable in an action at law. 

8
 In the absence of this statutory restriction, the language 

of Code § 8.01-422 is clear and unambiguous. That language does 

not contain any provisions subjecting equitable pleas of 

statutory recoupment to defenses available in an action at law 

such as the statute of limitations. Moreover, no other statute 

has revived the provision of former Code § 6149 allowing such 

defenses to equitable pleas asserted pursuant to statute. Thus, 

based on the statutory changes enacted after Neely, we conclude 

that our holding there is inapplicable to a plea of statutory 

recoupment under Code § 8.01-422. Accordingly, we hold that a 

plea of recoupment under Code § 8.01-422 is not subject to a 

statute of limitations defense, and that the trial court erred 

in holding that Cummings's recoupment plea under Code § 8.01-422 

was time-barred.3

 For these reasons, we will reverse the trial court's 

judgment, and remand the case for further proceedings based on 

the parties' pleadings.4

 3

We recognize that Code § 8.01-422 allows a defendant 

asserting a recoupment plea to claim an amount in excess of the 

plaintiff's claim, and that the statute provides that the court 

"may, in a proper case, give judgment in favor of the defendant 

for such excess." However, in view of the statutory changes 

discussed above, we are not at liberty to use this language to 

revive by construction the provision of former Code § 6149, 

treating statutory recoupment pleas as "actions," that the 

General Assembly chose to delete. 

4

Based on our holding, we do not reach Fulghum's assignment 

of cross-error regarding the trial court's computation of 

interest. 

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Reversed and remanded.

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