Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Poff, Senior Justice 

ALICE L. WARD 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 961338 February 28, 1997 

INSURANCE COMPANY OF NORTH AMERICA, ET AL. 

 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 In this appeal, we consider whether the plaintiff's 

cause of action against the defendants is barred by the 

applicable statute of limitations. 

 The relevant facts are not in dispute. Alice L. Ward 

recovered a judgment against Waverly Leon Charity on October 

23, 1986. Ward filed a motion for judgment against 

Insurance Company of North America and its successor in 

interest, CIGNA Property & Casualty Insurance Company, on 

October 23, 1991. Ward alleged that Charity was insured 

pursuant to the provisions of an automobile liability 

insurance policy issued by Insurance Company of North 

America. Ward asserted that she is a statutory beneficiary 

of the insurance policy and that the defendants breached the 

policy by failing to satisfy her judgment against Charity. 

Ward nonsuited that action on June 10, 1994. 

 On December 12, 1994, Ward commenced the present 

proceeding by filing another motion for judgment based on 

the same cause of action. The defendants filed a special 

plea in bar, asserting, inter alia, that Ward's cause of 

action was barred by the statute of limitations because her 

1991 motion for judgment was not filed within five "365-day 
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periods" from the date she obtained her judgment against 

Charity. The trial court entered an order sustaining the 

plea, and we awarded Ward an appeal.1

 The litigants agree that the plaintiff's alleged cause 

of action is governed by the five-year statute of 

limitations contained in Code § 8.01-246, which states in 

relevant part: 

 "[A]ctions founded upon a contract . . . shall be 

brought within the following number of years next 

after the cause of action shall have accrued: 

. . . . 

 2. In actions on any contract which is not 

otherwise specified and which is in writing and 

signed by the party to be charged thereby, or by 

his agent, within five years whether such writing 

be under seal or not. . . ." 

 Ward asserts that her motion for judgment is timely 

because she filed her original motion for judgment within 

the five-year statute of limitation period and, when she 

took her voluntary nonsuit pursuant to Code § 8.01-380, she 

was entitled to recommence her action within six months from 

the date of the nonsuit order, June 10, 1994. Code § 8.01-

229(E)(3).2

 Continuing, Ward contends that December 10, 

 1We find no merit in the defendants' argument that Ward's 

appeal should be dismissed because she failed to object to 

the entry of the trial court's order. The record is clear 

that Ward argued to the trial court that her cause of action 

was not barred by the statute of limitations. Ward was not 

required to make a formal exception to the trial court's 

order because the court was aware of her objections. Code 

§ 8.01-384. 

 2Code § 8.01-229(E)(3) states in relevant part: 
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1994, which is six months from the date of the nonsuit 

order, was a Saturday and, therefore, Code § 1-13.3:1 

permitted her to file her motion for judgment on Monday, 

December 12, 1994.3

 The defendants, relying upon Frey v. Jefferson 

Homebuilders, Inc., 251 Va. 375, 467 S.E.2d 788 (1996), 

assert that Ward was required to file her action within five 

"365-day periods" from the date she obtained the October 23, 

1986 judgment against Charity. The defendants state that, 

because "the year 1988 was a leap year[,] Ward actually 

filed her suit [within] four 365 day periods plus one 366 

 

 "If a plaintiff suffers a voluntary nonsuit as 

prescribed in § 8.01-380, the statute of 

limitations with respect to such action shall be 

tolled by the commencement of the nonsuited action, 

and the plaintiff may recommence his action within 

six months from the date of the order entered by 

the court, or within the original period of 

limitation, or within the limitation period as 

provided by subdivision B 1, whichever period is 

longer." 

 3Code § 1-13.3:1 states: 

 "When the last day fixed by statute, or by 

rule of the Supreme Court of Virginia for the 

commencement of any proceeding, for any paper to be 

served, delivered or filed, or for any other act to 

be done in the course of judicial proceedings falls 

on a Saturday, Sunday, legal holiday, or any day on 

which the clerk's office is closed as authorized by 

statute, the proceeding may be commenced, the paper 

may be served, delivered or filed and the act may 

be done on the next day that is not a Saturday, 

Sunday or legal holiday, or day on which the 

clerk's office is closed as authorized by statute." 
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day period. . . . Since Ward filed suit on October 23, 

[1991,] she did not file within the five years provided in 

. . . Code . . . § 8.01-246(2)." 

 We disagree with the defendants. Frey simply has no 

application here. In Frey, the primary issue we considered 

was whether a statutory extension of time in Code § 1-13.3:1 

applied to Rule 3:3 which states in pertinent part: 

 "No judgment shall be entered against a 

defendant who was served with process more than 

one year after the commencement of the action 

against him unless the court finds as a fact that 

the plaintiff exercised due diligence to have 

timely service on him." 

 Michael B. Frey and Patricia A. Frey filed a motion for 

judgment against Jefferson Homebuilders, Inc. on November 

12, 1993. One year and two days later, counsel for the 

Freys requested the clerk to issue process, which was 

delivered to Jefferson's registered agent. Jefferson filed 

a motion to dismiss the action on the ground that Rule 3:3 

precluded the entry of a judgment against it because 

Jefferson had been served with process more than one year 

after the action was commenced. The trial court sustained 

the motion. 

 On appeal, the Freys argued that the clerk's office was 

closed on Friday, November 11, 1994, a legal holiday, and 

did not reopen until Monday, November 14, 1994, and, 

therefore, they were entitled to the statutory extension 

specified in Code § 1-13.3:1. Agreeing with the Freys, we 
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stated that "Rule 3:3 effectively 'fixe[s]' the 365th day 

after commencement of the action as the 'last day' for the 

motion for judgment 'to be served [or] delivered,' thereby 

subjecting the one-year period of Rule 3:3 to the saving 

provision in Code § 1-13.3:1." 251 Va. at 378-79, 467 

S.E.2d at 790. 

 The defendants misinterpret our statements in Frey. We 

did not hold in Frey, as the defendants suggest, that one 

year is equivalent to 365 days. Indeed, such an 

interpretation ignores the fact that a leap year contains 

366 days. Furthermore, the defendants' interpretation of 

our statement in Frey is contrary to Code § 1-13.33, which 

defines the word year: "Unless otherwise expressed, the 

word 'year' shall be construed to mean a calendar 

year. . . ." 

 Applying Code § 1-13.33, we hold that courts in this 

Commonwealth must utilize calendar years and not "365-day 

periods" when computing whether a statute of limitations has 

expired. As Ward points out, her motion for judgment was 

filed within five calendar years from the date her cause of 

action against the defendants accrued, and she was entitled 

to both the tolling provision in the nonsuit statute, Code 

§ 8.01-229(E)(3), and the statutory time extension contained 

in Code § 1-13.3:1. Accordingly, we will reverse the 

judgment of the trial court and remand this case for further 
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proceedings. 

Reversed and remanded.