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Radiance Capital Receivables Fourteen LLC v. Foster

Supreme Court of Virginia

October 24, 2019

RADIANCE CAPITAL RECEIVABLES FOURTEEN, LLC, AS ASSIGNEE OF NEW SOUTH FEDERAL SAVINGS BANK,
v.
ROBERT D. FOSTER, ET AL.

          FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY Charles J. Maxfield, Judge Designate

         PRESENT: All the Justices

          OPINION

          TERESA M. CHAFIN, JUSTICE.

         This appeal requires us to determine whether a contractual waiver of the right to plead the statute of limitations was valid or enforceable under Virginia law. Upon review, we conclude that the waiver at issue was neither valid nor enforceable, and therefore, we affirm the circuit court's decision.

         I. BACKGROUND

         The pertinent facts of this case are undisputed. On February 21, 2006, Foster and Wilson Building, LLC (the "Company"), executed a promissory note in favor of New South Federal Savings Bank ("New South") based on a construction loan.[1] On March 2, 2006, Robert D. Foster and James M. Wilson executed a Continuing Guaranty agreement (the "Guaranty") with New South in which they personally guaranteed and promised to pay all of the Company's debt. In the Guaranty, Foster and Wilson agreed to "waive[] the benefit of any statute of limitations or other defenses affecting the . . . Guarantor's liability" under the agreement.

          The Company eventually defaulted on the promissory note, and a notice of default and demand for payment was sent to Foster and Wilson on August 27, 2010. On November 23, 2015, Radiance Capital Receivables Fourteen, LLC ("Radiance Capital"), the assignee of New South and holder of the promissory note and Guaranty, filed a complaint against Foster and Wilson in the Circuit Court of Gloucester County. Based on the Guaranty, Radiance Capital sought to collect the principal balance due on the note, interest, and attorney's fees. In response to Radiance Capital's complaint, Foster and Wilson asserted that Radiance Capital's claim was barred by the statute of limitations.

         The circuit court held a hearing regarding the plea in bar based on the statute of limitations on February 8, 2018. Although the Guaranty stated that it was governed by Alabama law, both parties agreed that Virginia law supplied the applicable statute of limitations and that a five-year statute of limitations applied to Radiance Capital's claim. Foster and Wilson acknowledged that the Guaranty contained a waiver of their statute of limitations defense. They maintained, however, that the waiver was unenforceable because it did not meet the specific requirements of Code § 8.01-232, the statute addressing the "[e]ffect of promises not to plead" the statute of limitations.

         In response, Radiance Capital emphasized that the present case involved a waiver of the statute of limitations defense rather than a promise not to plead the statute of limitations at a later date. Based on this distinction, Radiance Capital maintained that Code § 8.01-232 did not apply to the waiver at issue. Citing the first sentence of Code § 8.01-232, Radiance Capital also argued that Foster and Wilson should be estopped from asserting a statute of limitations defense because the failure to enforce the contractual waiver would "operate as a fraud" on Radiance Capital.

          After considering the parties' arguments and additional briefing, the circuit court concluded that the contractual waiver was not valid or enforceable according to the terms of Code § 8.01-232. Thus, the circuit court sustained the plea in bar based on the statute of limitations and dismissed Radiance Capital's complaint with prejudice. This appeal followed.

         II. ANALYSIS

         Radiance Capital contends that the circuit court erred by determining that the statute of limitations waiver set forth in the Guaranty was not valid or enforceable under Code § 8.01-232. Radiance Capital's arguments present issues of statutory interpretation. "Under well-established principles, an issue of statutory interpretation is a pure question of law which we review de novo." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007). Likewise, an "[a]ppeal of a decision on a plea in bar of the statute of limitations involves a question of law that we review de novo." Van Dam v. Gay, 280 Va. 457, 460 (2010). Upon conducting a de novo review of the issues presented in this case, we conclude that the waiver at issue was neither valid nor enforceable.

         A. THE WAIVER CONTAINED IN THE GUARANTY WAS NOT VALID UNDER CODE § 8.01-232

         In general, a party may contractually waive "any right conferred by law or contract." Gordonsville Energy, L.P. v. Virginia Elec. and Power Co., 257 Va. 344, 356 (1999). "[A] term of the parties' contract becomes the law of the case unless such term is ...


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