The opinion
By JUDGE NICHOLAS E. PERSIN
Upon a review of the memoranda and argument, the Court sustains the Plea of the Statute of Limitations of the defendant, Monk Supply Company.
It is conceded by plaintiff, Buchanan County School Board, that the suit was brought against the defendant after five years from the date the work was completed by Monk Supply Company. Nevertheless, plaintiff argues that the statute of limitations, § 8.01-246(2) of the Code, does not apply because it is immune from the statute as an agency of the state. The Court disagrees. School Boards are not identical to the state but, like counties, are subdivisions of the state. Section 8.01-231 of the Code of Virginia, as amended, is not applicable. Following the Supreme Court’s decision in Burns v. Board of Supervisors, 227 Va. 354 , 315 S.E.2d 856 (1984), the second sentence in § 8.01-231 became mere surplusage and was subsequently repealed by the General Assembly.
The plaintiff’s contention that the statute of limitations, if applicable, should not begin to run until damage occurs is also rejected by the Court. Section 8.01-230 of the Code and the case of Harbour Gate Owners Association v. Berg, 232 Va. 98 , 348 S.E.2d 252 (1986), is dispositive of this issue.
*389 The Court further rejects the argument of the School Board that § 8.01-230 is unconstitutional because it violates the right of due process of the plaintiff and equal protection of the law. The Court does not believe that the five-year limitation imposed by the General Assembly was arbitrary or capricious and violative of due process guarantees. The Court finds the statute to be constitutional.
The motion of the School Board to change its admission previously made about the oral contract to Smithey and Boynton is granted. There is no applicable case law on this issue in Virginia. At this time, this ruling creates no prejudice to the defendant, Smithey and Boynton. In the interest of justice, the Court feels the request should be granted and does not amount to an abuse of judicial discretion.