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RIVERA, et al.
December 22, 1999
Record No. 990081
NOELLE RIVERA, ET AL.
THOMAS R. NEDRICH
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
OPINION BY JUSTICE CYNTHIA D. KINSER
Present: All the Justices
Paul F. Sheridan, Judge
In this appeal, we consider whether the circuit
court erred in sustaining the defendants 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.
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 five-year
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 action in an
order dated May 22, 1998. We granted the plaintiffs this appeal.
The plaintiffs present two arguments in support
of their position that the circuit court erred in granting
Nedrichs 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 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 . . . ."
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 infants 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
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 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."  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 "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. 
For these reasons, we will reverse the judgment
of the circuit court and remand for further proceedings. 
Reversed and remanded.
 The plaintiffs rely on Code ? 8.01-229(A)(2)(a)
because of the circuit courts 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.
 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.
 Nedrichs 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
 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.