The Virginia Business Litigation Blog
If you get sued in Virginia on a claim your lawyer tells you is likely barred by the statute of limitations, you can raise the defense by way of a so-called “plea in bar.” A plea in bar is a pleading that presents a single set of facts that, if proven true, would bar the plaintiff’s claim from going forward. For example, if you can prove that the plaintiff’s claim arose earlier than the maximum amount of time permitted under the applicable statute of limitations, you may choose to file a plea in bar at the outset of the case to ask the court to dismiss it for that reason. Are you required to make this request at the outset of the case? No. If for some strategic reason you’d rather keep the defense in your back pocket to tell the jury about at trial, you can do that.
The issue came up recently in Ferguson Enterprises, Inc. v. F.H. Furr Plumbing, Heating and Air Conditioning, Inc., or as I like to refer to it, “Furr v. Ferguson.” Furr sued Ferguson in Prince William County on claims arising out of an alleged fraudulent-pricing scheme. Ferguson, a distributor of Trane-branded HVAC systems, had negotiated a pricing structure with Trane that allowed it to charge customers like Furr a discounted price and then receive a rebate or “claim back” from Trane. Furr entered into a contract with Ferguson back in 1995, but eventually came to believe that Ferguson was charging Furr a price above the discounted rate authorized by Trane. Furr sued in 2013 for fraud, unjust enrichment, breach of contract, and other claims.
Right away, Ferguson filed a plea in bar with respect to the fraud claim, alleging that it was barred by the two-year statute of limitations in Virginia for fraud claims. Now, there’s a couple of things I should point out about pleas in bar. First, unlike demurrers, special pleas allow for the presentation of evidence. You can opt to ask the court to rule on the papers, or you can request an evidentiary hearing if evidence is necessary to establish the basis for the plea. Second, if desired, you have the right to present that evidence to a jury. In other words, you can arrange a mini “jury trial” solely for the purpose of determining whether the facts demonstrate that the statute of limitations has expired.
In Furr v. Ferguson, the court decided on its own that an evidentiary hearing was necessary, and declined to rule on the plea in bar when the argument was first raised. Later, when Furr filed an amended complaint to attempt to remedy some defects in other claims it had brought and re-alleged the fraud claim, Ferguson didn’t bother filing a second plea in bar. After all, the court had already ruled that it would not decide the plea until an evidentiary hearing, and had specifically instructed Ferguson to file an answer to the fraud claim. After granting 
Ferguson’s demurrer to the other claims, the case proceeded to trial solely on Furr’s fraud claims.
After Furr presented its evidence over the course of a nine-day jury trial, Ferguson moved to strike, arguing that the evidence showed that the claim for actual fraud was time-barred. The court denied the motion. Ferguson renewed the motion at the close of all the evidence and the court denied the motion again. Ferguson asked the court to instruct the jury regarding its statute-of-limitations defense, and the court refused, apparently operating on the belief that it had already ruled (upon consideration of the plea in bar filed earlier) that the statute of limitations did not apply. The jury deliberated and returned a verdict of $3 million in favor of Furr.
Ferguson moved to set aside the verdict, pointing out to the court that it had actually declined to rule on the plea in bar and had not overruled it. The court had expressed the view earlier that it could not decide the plea without an evidentiary hearing, so no ruling was ever made on the plea in bar. The trial court remained unsympathetic, finding that even though it was mistaken in thinking it had already overruled the plea in bar, it didn’t matter because Ferguson had waived its statute-of-limitations defense by (a) not renewing it after Furr filed an amended complaint, and (b) not setting it for a hearing in advance of trial.
When the case hit the Virginia Supreme Court, however, virtually all of the trial court’s rulings pertaining to the statute of limitations defense were reversed. Ferguson wasn’t required to re-file its plea in bar in light of the fact the trial court had specifically instructed Ferguson to file an answer to the fraud claim. And it wasn’t required to schedule its plea in bar for a pretrial evidentiary hearing, either. Usually the whole point of filing a plea in bar is to get a case dismissed early, but there’s nothing in the rules that requires the docketing of a hearing prior to trial. Defenses raised in a plea in bar can be presented at trial just like any other defenses.
The Virginia Supreme Court also rejected the notion that Ferguson was not entitled to have the jury hear its plea in bar because it had not requested a jury trial. The court held that when one party requests a jury, the other is entitled to rely on that request and need not make a redundant jury demand.
After finding that Ferguson had not waived its statute-of-limitations defense, it reversed the trial court’s judgment and sent the case back to Prince William County for a jury trial solely on the issue of whether the statute of limitations on the fraud claim had expired.