Oleyar v. Kerr
| Decision Date | 11 June 1976 |
| Docket Number | No. 750876,750876 |
| Citation | 217 Va. 88,225 S.E.2d 398 |
| Parties | George L. OLEYAR, Jr. v. Elaine W. KERR, Trustee, etc., et al. Record |
| Court | Virginia Supreme Court |
John H. Johnston, Arlington (Slenker, Brandt, Jennings & O'Neal, Arlington, on briefs), for plaintiff in error.
Charles E. Pikrallidas, Alexandria (Thomson & Pikrallidas, Alexandria, on brief), for defendants in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Elaine W. Kerr, Trustee for William F. Stone and Angelo Verdicanno, deceased, and Elaine W. Kerr, individually, (Kerr) recovered a judgment for $17,622.20 against George L. Oleyar, Jr. (Oleyar), an attorney, for damages caused by Oleyar's negligence in examining and reporting on the title to Kerr's real property. We granted a writ of error and supersedeas limited to Oleyar's claim that the trial court should have sustained his plea of the statute of limitations.
The title search giving rise to Kerr's claim was ordered from Oleyar by Kerr on November 4, 1968. On November 18, 1968, Oleyar delivered to Kerr a certificate dated November 8, 1968, certifying that Kerr was the owner of the property in fee simple free of all encumbrances except for certain unpaid taxes, recorded easements and two deeds of trust described in the certificate. Oleyar's fee for conducting this title examination was duly paid in December, 1968. The record establishes that a judgment against Kerr's grantor, which had been duly docketed in August, 1967, and again in October, 1967, in the Clerk's Office of Fairfax County, was not discovered or reported to Kerr. At trial, Oleyar conceded his negligence in not finding and reporting this judgment lien.
Kerr subsequently conveyed the property and her grantees, who were required to obtain a release of the property from the judgment lien, sued Kerr on the warranty in her deed. They were awarded a judgment against her. Kerr incurred attorney fees, costs and expenses, in connection with that suit.
On January 6, 1971, Kerr proceeded against Oleyar for damages which she sustained as a result of Oleyar's negligence in failing to discover and report the judgment lien. Oleyar filed a plea of the statute of limitations.
The trial court heard oral argument on this plea on two occasions. At those hearings Oleyar contended that the proper period of limitation was one year under Code § 8--24 1 and Kerr, relying upon the written title certificate, argued that the five year limitation for contracts in writing under Code § 8--13 2 applied. The trial court ultimately held that the one year limitation for personal actions under Code § 8--24 applied but that the statute did not begin to run until November 9, 1970, the date when final judgment was entered against Kerr in her grantees' action.
We affirm, but for a different reason than that given by the trial court. Robbins v. Grimes, 211 Va. 97, 100, 175 S.E.2d 246, 248 (1970).
While alleging in her motion for judgment that Oleyar was negligent in examining her title, Kerr also alleged that she entered into an oral contract with Oleyar to examine and report on her title and that Oleyar, because of his neglect in making that examination, caused her damage. But for the contract, no duty by Oleyar to Kerr would have existed. Thus it is clear that Kerr's action against Oleyar is grounded upon and has its inception in the contractual relationship brought about by the oral agreement.
As is pointed out in Burks Pleading and Practice (4th ed., 1952), § 234 at 406:
'The following distinction, between actions for tort or contract is made by the English Court of Appeals: 'The distinction is this: If the cause of complaint be for an act of omission or non-feasance which, without proof of a contract to do what was left undone, would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists) then the action is founded upon contract, and not upon tort. If, on the other hand, the relation of the plaintiff and the defendants be such...
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