Present: All the Justices 

HELEN PARKER-SMITH 

v. Record No. 002184 OPINION BY JUSTICE CYNTHIA D. KINSER 

 September 14, 2001 

STO CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Kathleen H. MacKay, Judge 

 This appeal involves claims alleging false 

advertising, breach of warranty, and fraud arising out of 

the application of a synthetic stucco material known as 

“Exterior Insulation Finish System” (EIFS) to a residential 

home. Because we conclude that the period of limitation in 

Code § 8.01-248 applies to the false advertising claims, we 

will affirm the circuit court’s judgment sustaining pleas 

of the statute of limitations as to those counts. We 

cannot, however, reach the merits of the counts alleging 

breach of warranty and fraud because the circuit court had 

independent grounds for dismissing those counts that were 

not assigned as error. Consequently, we will also affirm 

the court’s judgment dismissing those counts. 

I. FACTS AND MATERIAL PROCEEDINGS 

Because this case was decided by the circuit court 

upon a plea of the statute of limitations, a demurrer, and 

a motion for summary judgment, all without evidentiary 

hearings, we will summarize the facts as alleged in the 
pleadings. See Eagles Court Condo. Unit Owners Ass’n v. 

Heatilator, Inc., 239 Va. 325, 327, 389 S.E.2d 304, 304 

(1990) (summarizing facts as stated in pleadings when 

reviewing case decided on demurrer). In doing so, we 

consider the facts stated and all those reasonably and 

fairly implied in the light most favorable to the nonmoving 

party, Helen Parker-Smith. See Yuzefovsky v. St. John’s 

Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 137 

(2001) (applying that principle of appellate review when 

case decided on demurrer); Dudas v. Glenwood Golf Club, 

Inc., 261 Va. 133, 136, 540 S.E.2d 129, 130-31 

(2001)(applying same principle when case decided on motion 

for summary judgment). 

Parker-Smith purchased a house located in Fairfax 

County in July 1994. West Homes, Inc., had built that 

house in 1991-1992 and sold it in 1992 to Parker-Smith’s 

predecessor-in-interest. The house’s exterior was covered 

with EIFS that Sto Corporation, a/k/a Sto Industries, had 

manufactured. 

When Sto sold its EIFS to West Homes in 1992, Sto 

issued a written warranty that its EIFS would be “free from 

defects in material for a period of seven (7) years from 

the date of Sto’s original invoice to Sto’s supplier, 

2
distributor, contractor, applicator or owner.”1 As 

reflected in the following provision of the warranty, Sto’s 

liability was limited to supplying replacement materials 

and labor: 

 Sto shall not be responsible for incidental or 

consequential damages as such terms are defined in 

Section 2-715 of the Uniform Commercial Code, . . . 

regardless of cause. Sto’s sole responsibility and 

liability under this warranty shall be to supply 

replacement materials and labor for any Sto product 

warranted hereunder shown to be defective within seven 

(7) years from the date of Sto’s original invoice to 

Sto’s supplier, distributor, contractor, applicator or 

owner, as the case may be. This is the sole remedy 

under this warranty to the purchaser, or other person 

or entity claiming under this warranty, which shall 

include the owner of the structure to which the Sto 

materials were applied, as the end user of the Sto 

products. 

After moving into the house, Parker-Smith discovered 

that her home had sustained significant damage allegedly 

caused, in part, by a defect in Sto’s EIFS. According to 

Parker-Smith’s averments, EIFS is designed to provide a 

water-proof exterior surface. However, some water 

penetrated that surface and, because of the nature and 

design of the EIFS, could not escape other than to seep 

through the underlying substructure of her house, causing 

rotting, structural deterioration, mold, mildew, and insect 

 1

 When West Homes sold the house at issue in this 

appeal, it assigned the warranty to the buyer, who in turn 

assigned it to Parker-Smith when she purchased the house in 

1994. 

3
infestations. Parker-Smith discovered such problems in her 

home. 

Consequently, she filed an action against Sto and West 

Homes, seeking, among other things, damages in an amount 

sufficient to demolish and rebuild her home.2 As pertinent 

to this appeal, Parker-Smith alleged, in a second amended 

motion for judgment, claims for false advertising against 

both Sto and West Homes. In that pleading, she also 

included counts alleging breach of warranty, and actual and 

constructive fraud against Sto. In response, Sto filed a 

demurrer, a plea of the statute of limitations, and a 

motion for summary judgment. West Homes asserted a plea of 

the statute of limitations with regard to the false 

advertising claim. 

The circuit court subsequently issued a letter opinion 

sustaining West Homes’ plea of the statute of limitations. 

The court determined that a cause of action for false 

advertising is subject to the “catch-all” limitation period 

in Code § 8.01-248, rather than the limitation period and 

accrual date applicable to a cause of action for fraud set 

 2

 When Parker-Smith initially filed her action on 

August 12, 1998, she named only Sto and four individuals as 

defendants. Those four individual defendants and any 

issues regarding them are not before us in this appeal. 

Parker-Smith added West Homes as a defendant in her first 

amended motion for judgment filed on April 7, 1999. 

4
forth in Code §§ 8.01-243(A) and 8.01-249(1), respectively. 

Thus, the court concluded that Parker-Smith’s false 

advertising claim was time-barred. The court subsequently 

entered an order incorporating its letter opinion and 

dismissing the case with prejudice as to West Homes. 

In a separate order, the circuit court also sustained 

Sto’s plea of the statute of limitations with regard to the 

false advertising claim asserted against it. As to the 

fraud counts alleged against Sto, the court sustained the 

demurrer on the basis that Parker-Smith had failed to plead 

those counts with sufficient specificity. The court also 

granted Sto’s motion for summary judgment because of lack 

of reliance by Parker-Smith upon the alleged 

misrepresentations. 

In a second letter opinion, the circuit court 

addressed Sto’s motion for summary judgment and plea of the 

statute of limitations regarding the breach of warranty 

claim. Relying on the decision in Luddeke v. Amana 

Refrigeration, Inc., 239 Va. 203, 387 S.E.2d 502 (1990), 

the court determined that, since the remedy sought by 

Parker-Smith, namely demolishing and rebuilding her house, 

was not within the scope of the limited warranty issued by 

Sto in 1992, her claim was barred by the four-year 

limitation period in Code § 8.2-725. In a subsequent order 

5
incorporating the reasons stated in its letter opinion, the 

court sustained Sto’s plea of the statute of limitations 

and dismissed the breach of warranty claim. 

In that second letter opinion, the court also 

concluded that the exclusion of consequential damages from 

the scope of the warranty was not unconscionable. The 

court rested its holding on the fact that the warranty, 

although limited to supplying replacement materials and 

labor, benefited a large group of people, including 

original and subsequent owners of the house, and extended 

for a period of seven years. The court also noted that 

Parker-Smith did not claim that there was grossly unequal 

bargaining power between Sto and the beneficiaries of the 

warranty when the contract was formed. Based on this 

Court’s decision in Envirotech Corp. v. Halco Eng’g, Inc., 

234 Va. 583, 593-94, 364 S.E.2d 215, 220-21 (1988), the 

court rejected the argument that, because the limited 

warranty failed in its essential purpose, the limitation of 

liability was unconscionable. 

II. ANALYSIS 

Parker-Smith’s five assignments of error challenge 

some of the circuit court’s rulings with regard to the 

counts alleging false advertising, breach of warranty, and 

6
fraud. Only the assignment of error regarding the claim 

for false advertising pertains to both Sto and West Homes. 

A. FALSE ADVERTISING 

Pursuant to Code § 59.1-68.3, “[a]ny person who 

suffers loss as the result of” false advertising in 

violation of Code § 18.2-216 may “bring an individual 

action to recover damages.”3 Neither Code § 59.1-68.3 nor 

§ 18.2-216 contains or designates a period of time during 

which the authorized cause of action must be brought after 

it accrues. The issue on appeal is whether the “catch-all” 

limitation period prescribed in Code § 8.01-248,4 or the 

 3

 In pertinent part, Code § 18.2-216 states that 

[a]ny person, firm, corporation or association who, 

with intent to sell or in anywise dispose of 

merchandise, . . . directly or indirectly, to the 

public for sale or distribution or with intent to 

increase the consumption thereof, or to induce the 

public in any manner to enter into any obligation 

relating thereto, . . . makes, publishes, 

disseminates, circulates or places before the public, 

in a newspaper or other publications, . . . an 

advertisement of any sort regarding merchandise, . . . 

or anything so offered to the public, which 

advertisement contains any promise, assertion, 

representation or statement of fact which is untrue, 

deceptive or misleading, or uses any other method, 

device or practice which is fraudulent, deceptive or 

misleading to induce the public to enter into any 

obligation, shall be guilty of a Class 1 misdemeanor. 

4

 Code § 8.01-248 provides that “[e]very personal 

action accruing on or after July 1, 1995, for which no 

limitation is otherwise prescribed, shall be brought within 

two years after the right to bring such action has 

7
limitation period and time of accrual for a cause of action 

based on fraud, see Code §§ 8.01-243(A) and –249(1), 

respectively,5 applies to an action for false advertising. 

Parker-Smith argues that the “catch-all” limitation 

period in Code § 8.01-248 should not be automatically 

applied merely because the General Assembly failed to 

designate a statute of limitations for a false advertising 

claim. Instead, she contends that this Court should 

determine the applicable statute of limitations by 

examining the substantive nature of the claim. Using that 

analytical framework, Parker-Smith asserts that a false 

advertising claim sounds in fraud. Therefore, she argues 

that Code §§ 8.01-243(A) and –249(1), establishing the 

limitation period and accrual date for a cause of action 

based on fraud, also control her cause of action for false 

advertising. Continuing, Parker-Smith asserts that, since 

she did not discover the defects in the EIFS until 1997, 

______________________ 

accrued.” Prior to July 1, 1995, the period of limitation 

in this statutory provision was one year. 

5

 In relevant part, Code § 8.01-243(A) states that 

“every action for damages resulting from fraud[] shall be 

brought within two years after the cause of action 

accrues.” Code § 8.01-249(1) provides that a cause of 

action for fraud accrues when such fraud “is discovered or 

by the exercise of due diligence reasonably should have 

been discovered.” 

8
she timely filed the false advertising claims against Sto 

and West Homes. 

We agree that the nature of the cause of action at 

issue should be analyzed when determining whether the 

“catch-all” limitation period in Code § 8.01-248 applies. 

This Court has previously done so when deciding which 

statute of limitations controlled a particular cause of 

action. See, e.g., Purcell v. Tidewater Constr. Corp., 250 

Va. 93, 96, 458 S.E.2d 291, 293 (1995); Curley v. Dahlgren 

Chrysler-Plymouth, Dodge, Inc., 245 Va. 429, 434-35, 429 

S.E.2d 221, 224 (1993); Vines v. Branch, 244 Va. 185, 189-

90, 418 S.E.2d 890, 893-94 (1992); Winslow, Inc. v. Scaife, 

219 Va. 997, 998, 1000, 254 S.E.2d 58, 60 (1979) (per 

curiam); Hospelhorn v. Corbin, 179 Va. 348, 351, 357, 19 

S.E.2d 72, 73, 76 (1942). 

Utilizing that approach, we conclude, however, that a 

cause of action for false advertising brought pursuant to 

Code §§ 59.1-68.3 and 18.2-216 does not sound in fraud. In 

reaching this conclusion, we recognize that a false 

advertising claim bears some resemblance to fraud in that 

Code § 18.2-216 prohibits an advertisement that “contains 

any promise, assertion, representation or statement of fact 

which is untrue, deceptive or misleading, or uses any other 

method, device or practice which is fraudulent, deceptive 

9
or misleading.” However, there are at least two important 

distinctions between a cause of action for false 

advertising and one for fraud. 

With regard to the first distinction, a party bringing 

an action alleging either actual or constructive fraud must 

prove that a representation was false. Evaluation Research 

Corp. v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390 

(1994). However, a violation of Code § 18.2-216 occurs 

when an advertisement contains a representation that, 

although deceptive or misleading, is not necessarily false 

or untrue. The phrase “untrue, deceptive or misleading” in 

Code § 18.2-216 is in the disjunctive. And, “[w]hen the 

General Assembly uses . . . different terms in the same 

act, it is presumed to mean . . . different things. Forst 

v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 278, 

279 S.E.2d 400, 404 (1981). 

Second, in fraud, the misrepresentation must relate to 

a present or pre-existing fact; it cannot be “‘predicated 

on unfulfilled promises or statements as to future 

events.’ ” ITT Hartford Group, Inc. v. Virginia Fin. 

Assocs., Inc., 258 Va. 193, 203, 520 S.E.2d 355, 361 (1999) 

(quoting Patrick v. Summers, 235 Va. 452, 454, 369 S.E.2d 

162, 164 (1988)); see also Lumbermen’s Underwriting 

Alliance v. Dave’s Cabinet, Inc., 258 Va. 377, 382, 520 

10
S.E.2d 362, 365 (1999). In contrast, the misrepresentation 

in a false advertising claim does not have to relate to a 

statement of present or pre-existing fact. It can be just 

a promise. See Code § 18.2-216 (“promise, assertion, 

representation or statement of fact”). Again, the General 

Assembly used different terms in the disjunctive. See

Forst, 222 Va. at 278, 279 S.E.2d at 404. 

Because of these notable differences, we conclude that 

the statutory cause of action for false advertising is not 

properly analogized to a common law cause of action for 

fraud. Therefore, a false advertising claim is not subject 

to the limitation period in Code § 8.01-243(A) and the time 

of accrual in Code § 8.01-249(1), both of which pertain to 

an action for fraud. Instead, a cause of action for false 

advertising is an action for which no limitation period is 

prescribed. Therefore, Code § 8.01-248 is applicable, and 

the circuit court correctly determined that Parker-Smith’s 

claims for false advertising were barred under either the 

former one-year or the current two-year limitation period 

in that statutory provision.6

 6

 Parker-Smith does not raise any issue regarding when 

her false advertising claims accrued for purposes of 

applying the limitations period in Code § 8.01-248. 

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B. BREACH OF WARRANTY 

In Parker-Smith’s two assignments of error regarding 

her breach of warranty claim, she asserts that the circuit 

court erred by failing to distinguish between the 

applicability of Code §§ 8.2-719(2) and –719(3), and by 

determining that Sto’s warranty, which excluded liability 

for consequential damages, is not unconscionable.7 In 

making these arguments, Parker-Smith acknowledges that the 

damages she seeks to recover against Sto are the costs of 

demolishing and rebuilding her home, not the costs of 

replacement materials and labor. In other words, she does 

not contest the fact that she is not seeking the remedy 

provided in the limited warranty. Based on that fact and 

this Court’s decision in Luddeke, the circuit court 

concluded that her breach of warranty claim is barred by 

the limitation period in Code § 8.2-725. And, in its 

order, the court specifically dismissed the count alleging 

breach of warranty for that reason. 

 7

 Code § 8.2-719(2) provides that “[w]here 

circumstances cause an exclusive or limited warranty to 

fail of its essential purpose, remedy may be had as 

provided in this act.” Section 8.2-719(3) states, in 

pertinent part, that “[c]onsequential damages may be 

limited or excluded unless the limitation or exclusion is 

unconscionable.” 

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Yet, Parker-Smith did not assign error to that 

dispositive basis for the circuit court’s decision. She 

assigned error only to the court’s finding regarding the 

exclusion of consequential damages. Because her 

assignments of error do not challenge the court’s 

independent basis for its judgment sustaining the plea of 

the statute of limitations on the breach of warranty count, 

we do not address Parker-Smith’s arguments pertaining to 

the question whether the exclusion of consequential damages 

was unconscionable. Rule 5:17(c); Rash v. Hilb, Rogal & 

Hamilton Co. of Richmond, 251 Va. 281, 286-87, 467 S.E.2d 

791, 795 (1996). 

C. FRAUD 

Parker-Smith asserted claims for actual and 

constructive fraud against Sto on the basis that Sto failed 

to disclose to the public known defects in its EIFS. In 

ruling on Sto’s challenges to those claims, the court not 

only sustained the demurrer on the ground that Parker-Smith 

failed to plead those counts with adequate specificity, but 

also granted Sto’s motion for summary judgment because of 

the lack of reliance by Parker-Smith upon the alleged 

misrepresentations. 

Parker-Smith’s two assignments of errors with regard 

to her fraud claims address only the court’s decision 

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sustaining Sto’s demurrer. Specifically, she assigned 

error to the court’s determination that a manufacturer with 

superior knowledge of inherent defects in its product and 

the reasonably foreseeable damage that will result from 

those defects has no duty to disclose such information to 

the consuming public. Parker-Smith also assigned error to 

the court’s conclusion that she did not plead her fraud 

counts with adequate specificity. She did not assign error 

to the circuit court’s separate ruling based on her lack of 

reliance. Since the court had an independent basis for 

dismissing the fraud counts that is not the subject of an 

assignment of error, we cannot consider the arguments 

advanced by Parker-Smith regarding her fraud claims. Rule 

5:17(c); Rash, 251 Va. at 286-87, 467 S.E.2d at 795. 

CONCLUSION 

For the reasons stated, we will affirm the judgment of 

the circuit court.8

Affirmed. 

 8

 In light of our decision, we do not reach the 

assignments of cross-error. 

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