Present: All the Justices 

NOELLE RIVERA, ET AL. 

v. Record No. 990081 OPINION BY JUSTICE CYNTHIA D. KINSER 

 December 22, 1999 

THOMAS R. NEDRICH 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Paul F. Sheridan, Judge 

 In this appeal, we consider whether the circuit court 

erred in sustaining the defendant’s plea in bar asserting 

that the applicable statute of limitations had expired. 

Because we conclude there was error, we will reverse the 

judgment of the circuit court. 

FACTS 

 Thomas R. Nedrich executed a promissory note dated 

February 16, 1989, payable to “Marta X. Rivera, Trustee for 

Noelle and Sebastian Rivera” (the Rivera children). The 

Rivera children were both minors. Under the terms of the 

note, the entire principal balance of $10,000 plus 

outstanding interest was due and payable on February 1, 

1990. 

Nedrich allegedly made only two interest payments on 

the note and failed to make timely payment of the principal 

balance and outstanding interest. Consequently, Marta, in 

her individual capacity, filed a motion for judgment 

against Nedrich in the circuit court on June 18, 1993. In 
response, Nedrich filed a plea in bar in which he asserted 

that Marta could not maintain the action against him 

because she was not the proper party plaintiff. Nedrich 

pointed out that Marta had filed the motion for judgment in 

her individual capacity although the note was payable to 

her as “Trustee” for the Rivera children. By order dated 

June 1, 1994, the circuit court sustained the plea in bar 

on the basis that Marta was not the proper party plaintiff, 

and entered judgment against her. 

A second motion for judgment was subsequently filed 

against Nedrich on October 31, 1997. The named plaintiffs 

in that action were “Noelle Rivera, a minor, and Sebastian 

Rivera, a minor, by their next friend and trustee, Diane C. 

Gravis.” As Marta had alleged in the first action, the 

plaintiffs in the second lawsuit also alleged that Nedrich 

had defaulted on the payment of the promissory note, and 

sought judgment against him. 

Again, Nedrich filed a plea in bar. In this plea, 

Nedrich asserted that the cause of action accrued on 

February 1, 1990, and consequently, the applicable fiveyear statute of limitations contained in Code § 8.01-246(2) 

expired prior to the filing of the second action. The 

circuit court sustained the plea in bar and dismissed the 

2
action in an order dated May 22, 1998. We granted the 

plaintiffs this appeal. 

ANALYSIS 

The plaintiffs present two arguments in support of 

their position that the circuit court erred in granting 

Nedrich’s plea in bar to the second action. First, the 

plaintiffs assert that the court erred in concluding that 

the applicable statute of limitations had expired. They 

argue that, due to the infancy of the Rivera children, the 

statute of limitations was tolled pursuant to Code § 8.01-

229. Second, the plaintiffs assert that Nedrich took 

inconsistent positions in the two actions filed against 

him. Thus, they contend that the circuit court should have 

“estopped [Nedrich] . . . from taking [an] opposite 

position” from the one he espoused in the first action. 

With regard to the question concerning the statute of 

limitations, Code § 8.01-246(2) requires that a cause of 

action on a written contract be brought within five years 

after the cause of action accrues. This section applies to 

a promissory note such as the one at issue in this appeal. 

Harris & Harris v. Tabler, 232 Va. 75, 348 S.E.2d 241 

(1986). A cause of action on a note accrues when the 

obligation to pay is breached. Code § 8.01-230. 

Accordingly, when Nedrich allegedly failed to make payment 

3
on February 1, 1990, the due date of the note, the cause of 

action accrued and the prescribed limitation period began 

to run. Consequently, that cause of action expired five 

years later, unless it was tolled. 

 The plaintiffs assert that the infancy of the Rivera 

children tolled the running of the statute of limitations 

in the present action. They contend that Code § 8.01-

229(A)(1), which states that “[i]f a person entitled to 

bring any action is at the time the cause of action accrues 

an infant, . . . such person may bring it within the 

prescribed limitation period after such disability is 

removed,” is applicable because the Rivera children were 

infants when the cause of action on the note accrued. The 

plaintiffs also rely on Code § 8.01-229(A)(2)(a), which 

provides that “[a]fter a cause of action accrues, . . . 

[i]f an infant becomes entitled to bring such action, the 

time during which he is within the age of minority shall 

not be counted as any part of the period within which the 

action must be brought . . . .”1

 1

 The plaintiffs rely on Code § 8.01-229(A)(2)(a) 

because of the circuit court’s comments in the first action 

that “the children are the proper parties plaintiffs” to 

enforce the terms of the note. On brief, they assert that 

it became a “certainty” at that time that the Rivera 

children were entitled to bring the present cause of 

action. 

4
We agree that the plaintiffs receive the benefit of 

the tolling provision in Code § 8.01-229(A)(1). The Rivera 

children brought the second action against Nedrich through 

Gravis, acting as their “next friend” in accordance with 

Code § 8.01-8. That section provides that “[a]ny minor 

entitled to sue may do so by his next friend.” When a suit 

is filed in this manner, it must be styled in the infant’s 

name by his or her next friend, as was done in the present 

case. Womble v. Gunther, 198 Va. 522, 530, 95 S.E.2d 213, 

219 (1956); Kirby v. Gilliam, 182 Va. 111, 116-17, 28 

S.E.2d 40, 43 (1943). 

Although we have not previously addressed the effect 

of the tolling provisions in Code § 8.01-229 in a suit 

brought on behalf of an infant by a “next friend,” other 

courts have concluded that a person under a legal 

disability has a right to institute an action through a 

guardian, parent, or “next friend” at any time during the 

continuance of the disability. See Johnson v. United 

States, 87 F.2d 940, 942 (8th Cir. 1937); Barton-Marlow Co., 

Inc. v. Wilburn, 556 N.E.2d 324, 326 (Ind. 1990); Talley by 

Talley v. Portland Residence, Inc., 582 N.W.2d 590, 592 

(Minn. Ct. App. 1998). Long before the enactment of Code 

§ 8.01-229, we did note, however, that no authority showed 

that an infant could not sue both when his or her infancy 

5
terminated, as well as by a “next friend” during the time 

between the accrual of the cause of action and the 

termination of infancy. Hansford v. Elliott, 36 Va. (9 

Leigh) 79, 95 (1837). Thus, we conclude that a person 

under a legal disability, such as the Rivera children, may 

bring an action by a “next friend” at any time during the 

continuance of the legal disability or, after the 

disability is removed, in their own name within such time 

as allowed under Code § 8.01-229 and the prescribed 

limitation period. “It would be strangely lacking in 

common sense to compel an infant to wait helpless and 

without possibility of redress for his grievances during 

the period between the expiration of the limitation barring 

actions by those of full age and of sound mind and the time 

of reaching his majority.” Johnson, 87 F.2d at 943. 

Relying on Beverage v. Harvey, 602 F.2d 657 (4th Cir. 

1979), Nedrich nevertheless contends that the statute of 

limitations applicable to the instant case is not tolled by 

the infancy of the Rivera children. In that case, the 

United States Court of Appeals for the Fourth Circuit held 

that the statute of limitations for a Virginia wrongful 

death action was not tolled by the infancy of the 

beneficiary of the action, because, under former Code § 8-

30, the infant beneficiary was not the “person to whom the 

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right accrue[d] to bring any such personal action.” 

Instead, such an action must be brought in the name of the 

personal representative of the decedent. Id. at 658. We 

do not agree with Nedrich because Beverage is not 

applicable to the present case. 

Although Gravis brought suit both as a “next friend” 

and “trustee” of the Rivera children, we find no evidence 

of either “explicit language” creating a trust or 

“circumstances which show with reasonable certainty that a 

trust was intended to be created.”2 Woods v. Stull, 182 Va. 

888, 902, 30 S.E.2d 675, 682 (1944). The use of the term 

“Trustee” in the promissory note is not controlling because 

of the lack of evidence with regard to the existence of a 

trust as well as to the material terms of such a trust. 

See Massanetta Springs Summer Bible Conference Encampment 

v. Keezell, 161 Va. 532, 540, 171 S.E. 511, 514 (1933) 

(purpose of trust must be clearly defined and duties of 

trustees prescribed); Executive Comm. of Christian Educ. 

and Ministrial Relief v. Shaver, 146 Va. 73, 79, 135 S.E.

714, 715 (1926) (use or non-use of technical words such as 

 2

 As the party asserting the plea in bar, Nedrich bore 

the burden of proving facts necessary to establish that the 

statute of limitations had run, including the fact that a 

valid trust exists. Lo v. Burke, 249 Va. 311, 316, 455 

S.E.2d 9, 12 (1995). The plaintiffs contested that fact in 

their responses to the plea in bar. 

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“trust” or “trustee” is not controlling). The additional 

lack of evidence with regard to when or how Gravis became a 

“successor” trustee, as alleged in the motion for judgment, 

further supports our conclusion that a trust does not exist 

with regard to the promissory note at issue in this case. 

See generally Code §§ 26-46 through –58 (dealing with 

appointment, qualification, resignation and removal of 

fiduciaries). Thus, we believe that the note is a contract

entered into for the benefit of the Rivera children. 

Accordingly, in contrast to the situation in Beverage, the 

Rivera children, pursuant to Code § 55-22, had the right to 

file this action, by their “next friend,” to enforce the 

terms of the note.3

For these reasons, we will reverse the judgment of the 

circuit court and remand for further proceedings.4

Reversed and remanded. 

 3

 Nedrich’s reliance on the decisions in Moses v. 

Akers, 203 Va. 130, 122 S.E.2d 864 (1961), and Watson 

v. Daniel, 165 Va. 564, 183 S.E.2d 183 (1935), is also 

misplaced. 

4

 In light of our decision with regard to the tolling 

of the statute of limitations, we do not need to address 

the plaintiffs’ other argument.

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