Present: Hassell, C.J., Koontz, Kinser, Goodwyn, Millette, and 

Mims, JJ., and Russell, S.J. 

JOSEPHINE VAN DAM 

 OPINION BY 

v. Record No. 091659 SENIOR JUSTICE CHARLES S. RUSSELL 

 September 16, 2010 

GORDON B. GAY 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

John E. Kloch, Judge 

 This appeal presents a question as to the time a right of 

action accrued, and the statute of limitations began to run, 

in an action to recover damages for legal malpractice. 

Facts and Proceedings

 The facts are undisputed. Nicholas J. Van Dam (the 

former husband) and Josephine F. Van Dam (the wife) were 

parties to a divorce suit in 1986. The wife retained Gordon 

B. Gay, an attorney at law, (the defendant) to represent her 

in the case. The parties and their attorneys negotiated a 

settlement of the issues in the suit and entered into a 

property settlement agreement, drafted by the defendant, on 

September 30, 1986. During the marriage, the former husband 

participated in two federal retirement plans, related to his 

military service and civil service employment. The property 

settlement agreement made only the following reference to 

them: “The wife shall receive . . . survivor’s benefits from 

the husband’s retirement pay.” 
 On November 3, 1986, the circuit court entered a final 

decree of divorce, ratifying and incorporating the property 

settlement agreement. The former husband died on June 22, 

2006. Immediately thereafter, the wife applied to the 

appropriate federal authorities for survivor’s benefits under 

her former husband’s two retirement plans. Both claims were 

denied on the ground that the 1986 property settlement 

agreement was insufficient, as a matter of federal law, to 

entitle her to any benefits under either plan. 

 On January 26, 2009, the wife brought this action to 

recover damages for legal malpractice against the defendant. 

The defendant filed a plea in bar asserting the statute of 

limitations. The circuit court received briefs, heard 

arguments, and sustained the plea of the statute of 

limitations, dismissing the wife’s complaint with prejudice. 

We awarded the wife an appeal. 

Analysis

 Appeal of a decision on a plea in bar of the statute of 

limitations involves a question of law that we review de novo. 

Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574 

(2008). Because no evidence was presented on the plea in bar, 

we are limited to the facts set forth in the complaint and the 

defendant has the burden of proof on the issue that the 

limitation period had run when the complaint was filed. 

2
Schmidt v. Household Fin. Corp., II, 276 Va. 108, 112, 117, 

661 S.E.2d 834, 836, 839 (2008). 

 The circuit court held that the wife’s cause of action 

accrued in 1986, when the defendant’s alleged malpractice 

occurred, and that the statute of limitations had therefore 

run long before the filing of this action. The wife contends 

that she suffered no injury resulting from the defendant’s 

malpractice until the date of her former husband’s death on 

June 22, 2006, and that this action thus was timely filed.1

 Code § 8.01-230 provides, in pertinent part: 

In 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 from the date . . . when the breach of 

contract occurs in actions ex contractu and not when 

the resulting damage is discovered . . . .”2

 The terms “right of action” and “cause of action,” 

although sometimes used interchangeably, are not synonymous. 

Stone v. Ethan Allen, Inc., 232 Va. 365, 368, 350 S.E.2d 629, 

 1

 In Virginia, actions for legal malpractice sound in 

contract and are thus governed by the limitation periods 

prescribed for contract claims. Oleyar v. Kerr, 217 Va. 88, 

90, 225 S.E.2d 398, 399 (1976). Those periods are three years 

for breach of an oral contract and five years for breach of a 

written contract. Code § 8.01-246. 

2

 The Virginia General Assembly has consistently declined 

to adopt a "discovery rule." See e.g., H.B. 486, Va. Gen. 

Assem. (Reg. Sess. 1994) and H.B. 569, Va. Gen. Assem. (Reg. 

Sess. 1994) (proposals to add discovery rule provision for 

injuries to person or damage to property not enacted). 

3
631 (1986). They may accrue simultaneously but that will not 

always be the case. A right of action cannot arise until a 

cause of action exists because a right of action is a remedial 

right to presently enforce an existing cause of action. 

Shipman v. Kruck, 267 Va. 495, 502, 593 S.E.2d 319, 322 

(2004). 

 The wife concedes that the accrual of her right of action 

did not await her discovery of the defendant’s malpractice, 

but contends that her cause of action could not have accrued, 

and therefore her right of action did not accrue, until she 

suffered damage arising from the defendant’s malpractice. 

This is so, her argument continues, because injury or damage 

is an essential element of any cause of action. Her damage 

did not occur, she contends, until the death of her former 

husband in 2006, when her right to survivors’ benefits would 

have arisen but for the defendant’s malpractice. She contends 

that before her former husband’s death, her right to 

survivors’ benefits would have been purely contingent upon his 

predeceasing her. 

 We addressed a similar issue in MacLellan v. 

Throckmorton, 235 Va. 341, 367 S.E.2d 720 (1988). In that 

case, the plaintiff engaged the defendant attorney to 

represent him in a divorce case. The plaintiff alleged that 

the attorney negotiated a property settlement agreement that 

4
the plaintiff signed only because the attorney represented to 

him that its provisions for spousal support could later be 

modified by the court if the plaintiff were to suffer a change 

in his circumstances. The plaintiff further alleged that this 

representation was erroneous, that he later became disabled 

and unable to work, but found that the agreed provisions for 

spousal support, incorporated into the divorce decree, could 

not be modified. The plaintiff sued the attorney for 

malpractice and was met by a plea of the statute of 

limitations. There, we held that the cause of action accrued 

upon the termination of the particular undertaking in which 

the attorney was engaged. That was the date of entry of the 

final decree of divorce, which occurred more than three years 

before the malpractice action was filed. Id. at 345, 367 

S.E.2d at 722. We affirmed the trial court’s judgment 

sustaining the plea of the statute of limitations. Id.

 We reached that result despite the fact that the 

plaintiff did not become aware of the malpractice until after 

the limitation period had run, and even if he had been aware 

of it in time, he would have then been unable to quantify his 

damages with precision. His injury arising from the 

attorney’s malpractice occurred when the court entered a final 

decree of divorce incorporating a property settlement 

5
agreement that, contrary to the attorney’s assurance, was not 

subject to change. 

 In the present case the wife relies on Rutter v. Woltz, 

Blechman, Woltz & Kelly, P.C., 264 Va. 310, 568 S.E.2d 693 

(2002). In that case the executor of a decedent’s estate sued 

a law firm for malpractice in preparing testamentary documents 

that incurred tax liabilities that could have been avoided. 

Id. at 312-13, 568 S.E.2d at 694. The issue in Rutter was not 

the statute of limitations, but rather was whether the cause 

of action arose during the decedent’s lifetime and survived 

her death pursuant to Code § 8.01-25. Id. at 313, 568 S.E.2d 

at 694-95. That section limits the survival of actions to 

those that “existed” prior to a decedent’s death. The 

question was whether the decedent could have maintained the 

malpractice action against the attorney during her lifetime. 

We answered that question in the negative because no cause of 

action existed until some injury or damage was sustained as a 

result of the malpractice. Since the damage in Rutter was 

limited to the unnecessary taxes and fees that were not 

incurred until after the decedent's death, we held that no 

cause of action existed during her lifetime and thus there was 

no cause of action that could survive her death. Id. at 314, 

568 S.E.2d at 695. 

6
 The distinction between Rutter and the present case lies 

in the mutability of testamentary dispositions during the 

testator’s lifetime. A testator may, during his lifetime, 

alter his will or other testamentary papers as he pleases and 

whenever he chooses. See e.g., Schilling v. Schilling, 280 

Va. 146, 149, 695 S.E.2d 181, 183 (2010) (a will does not 

"take effect until the death of the maker" and "has no life or 

force" while the maker is alive) (quoting Timberlake v. StatePlanters Bank of Commerce & Trusts, 201 Va. 950, 957, 115 

S.E.2d 39, 44 (1960)). While he lives, no beneficiary has 

anything more than a bare expectancy and no person has 

suffered any injury or damage as a result of his tentative 

dispositions. Thus the claimant in Rutter could have suffered 

no injury or damage during the decedent's lifetime and there 

was no cause of action that could have survived her death. In 

the present case, as in MacLellan, the plaintiff suffered a 

legal injury arising out of the defendant’s malpractice when 

the final decree of divorce, incorporating the defective 

property settlement agreement, was entered by the circuit 

court. 

 The legal injury suffered by the wife in the present case 

in 1986 was not vitiated by the fact that her right to pension 

benefits was contingent upon her surviving her former husband. 

By virtue of the equitable distribution statutes, Code §§ 20-

7
107.3(A)(2) and (G), in divorce proceedings all pensions are 

presumed to be marital property in the absence of satisfactory 

evidence that they are separate property and the court may 

direct payment of the marital share of such benefits whether 

they are “vested or nonvested” as they become payable. In 

Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (1994), the 

Court of Appeals approved an award to a wife of a percentage 

of the marital share of her husband’s military retirement 

benefits as they became payable in the future, despite the 

fact that the husband had, at the time of divorce, nine more 

years to serve in the Air Force before his military pension 

rights would become vested. Id. at 728-29, 446 S.E.2d at 895. 

 Some injury or damage, however slight, is essential to a 

cause of action, but it is immaterial that all the damages 

resulting from the injury do not occur at the time of the 

injury. The running of the limitation period will not be 

tolled by the fact that actual or substantial damages did not 

occur until a later date. Difficulty in ascertaining the 

existence of a cause of action is similarly irrelevant. This 

time-honored rule may produce inequities by triggering a 

statute of limitations when the injury or damage is unknown or 

difficult or even incapable of discovery, but we have long 

concluded that it is the role of the General Assembly, not the 

courts, to change a rule of law that has been relied upon by 

8
the bench and bar for many years. Shipman, 267 Va. at 502-03, 

593 S.E.2d at 323; Virginia Military Inst. v. King, 217 Va. 

751, 759, 232 S.E.2d 895, 900 (1977). 

Conclusion

 The circuit court correctly held that the wife’s legal 

injury arising out of the defendant’s alleged malpractice 

occurred on November 3, 1986, when the court entered a final 

decree of divorce, terminating the defendant’s employment in 

the matter in which he was engaged. The wife’s right of 

action accrued on that date and the statute of limitations 

then began to run. The court did not err in sustaining the 

plea in bar and we will accordingly affirm the judgment. 

Affirmed.

9