Sauder v. Ferguson

PRESENT: All the Justices

SUSAN M. SAUDER
OPINION BY
v. Record No. 140805 JUSTICE ELIZABETH A. McCLANAHAN
April 16, 2015
DENNIE LEE FERGUSON, JR.

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge

Susan M. Sauder appeals from the final order of the

circuit court denying her motion to set aside the default

judgment entered in her favor against Dennie Lee Ferguson, Jr.

Sauder argues the circuit court had no discretion to deny her

motion because the default judgment was void ab initio as a

result of her failure to obtain valid service upon Ferguson.

In the alternative, she contends the circuit court abused its

discretion in failing to set aside a default judgment that was

void ab initio. We will affirm the judgment of the circuit

court.

I. BACKGROUND

On October 15, 2009, Sauder and Ferguson were involved in

an automobile accident in which the vehicles being operated by

each of them collided with one another. Subsequently,

Progressive Gulf Insurance Company ("Progressive"), which

provided coverage on the vehicle Ferguson was operating at the

time of the accident, filed a declaratory judgment action

seeking a determination that it was not obligated to provide
coverage for the accident because Ferguson was not a permissive

user of the vehicle. Progressive named as defendants,

Rockingham Mutual Insurance Company ("Rockingham Mutual"),

Rockingham Casualty Company ("Rockingham Casualty"), Sauder and

Ferguson. Because Rockingham Mutual does not provide

automobile insurance coverage, it was dismissed from the action

by order of nonsuit. Rockingham Casualty remained in the

action due to potential liability under an uninsured motorist

policy covering Sauder at the time of the accident.

During the pendency of the declaratory judgment action,

Ferguson testified in a deposition taken on August 23, 2010,

that he was currently residing with his mother at 2210 John

Wayland Highway in Harrisonburg and was living at that address

at the time of the accident. He also testified he was employed

in his mother's business and provided both his and his mother's

current cellular telephone numbers. Sauder was represented by

counsel who conducted examination of Ferguson on Sauder's

behalf.

At the trial of the declaratory judgment action, which

took place on May 19, 2011, Ferguson again testified that he

was residing with his mother and employed in her business.

Sauder was represented by counsel who was also present at the

trial. At the conclusion of the trial, the circuit court ruled

that Ferguson was an uninsured motorist at the time of the

2
accident. Thus, Rockingham Casualty's policy of uninsured

motorist insurance provides coverage for the first $100,000 of

any judgment that Sauder is legally entitled to recover against

Ferguson for damages arising from the accident.

On June 10, 2011, Sauder filed, by different counsel, a

complaint against Ferguson seeking damages arising from the

automobile accident. On June 29, 2011, Sauder served Ferguson

by posting at 1460 West Market Street in Harrisonburg, the

address that was listed for Ferguson on the police report of

the accident, instead of the address given by Ferguson in his

deposition and at trial in the declaratory judgment action. On

the same date, Sauder served Rockingham Mutual, by personal

service on its registered agent, instead of Rockingham

Casualty, which provides the uninsured motorist coverage for

the accident.1

On August 29, 2012, Sauder filed a motion for entry of

default judgment on the grounds that no pleadings in response

to Sauder's complaint had been filed on behalf of Ferguson.

Sauder filed a subsequent motion for entry of default judgment

on September 24, 2012. In this motion, Sauder stated that the

second motion for entry of default judgment was filed because

1
W. Neal Menefee is the registered agent for both
Rockingham Mutual and Rockingham Casualty.
3
Sauder was required to notify Ferguson of the implications of

not appearing at the hearing scheduled on October 17, 2012. On

October 2, 2012, Sauder attempted to serve Ferguson at the 1460

West Market Street address with the motion, notice of motion

for entry of default judgment on October 17, 2012, and proposed

order entering judgment by default. She also mailed the

motion, notice, and proposed order to the 1460 West Market

Street address as well as an address in Ashland, Kentucky. The

proof of service was returned showing that Ferguson was "Not

Found" and with a notation of "Moved."

On October 12, 2012, Sauder served the motion, notice of

motion, and proposed order on Ferguson at the 2210 John Wayland

Highway address in Harrisonburg by delivery to his mother.

Neither Ferguson nor anyone on his behalf appeared, and an

order of default judgment was entered by the circuit court on

November 29, 2012. The order instructed that a copy be served

upon Ferguson at 220 (instead of 2210) John Wayland Highway in

Harrisonburg. A proof of service shows that Ferguson was

personally served with the order entering judgment by default

on December 10, 2012. Various papers were also served on the

secretary to W. Neal Menefee as registered agent for

"Rockingham Group Insurance" on January 8, 2013.

On January 9, 2013, the circuit court entered an order

setting a bench trial on damages for March 4, 2013. Sauder

4
personally served the scheduling order on Ferguson at the 2210

John Wayland Highway address. Menefee was also personally

served with this order. On March 4, 2013, Sauder presented

evidence of her damages and neither Ferguson nor anyone on his

behalf appeared. On March 14, 2013, the circuit court entered

an order awarding Sauder $300,000 in damages. The order

provided that "Rockingham Mutual is liable for its contractual

portion of Ms. Sauder's Uninsured Motorist Policy" based upon

the following grounds:

Rockingham Mutual Insurance Company and/or
Rockingham Casualty Company ("Rockingham Mutual")
– same name, both entities of the Rockingham
Group with the same address, registered agent,
payer of her medical expense coverage,
corresponded with Plaintiff's attorney, and party
in the Declaratory Action participated in the
Declaratory Action and cooperated with
Plaintiff's counsel prior to the Court's ruling.
Ms. Sauder was insured by a policy with
Rockingham Mutual Insurance Company and/or
Rockingham Casualty Company ("Rockingham Mutual")
due to its Uninsured Motorist Coverage Policy
with coverage limits of $100,000[.]

On April 5, 2013, Rockingham Casualty filed a complaint

for declaratory judgment seeking a determination that Sauder

was not legally entitled to collect the judgment rendered on

March 14, 2013, because Ferguson was never served with the

summons or complaint and Rockingham Casualty was never served

5
as required by Code § 38.2-2206(F).2 Thereafter, on May 14,

2013, Sauder filed a motion to set aside the default judgment

pursuant to Code § 8.01-428(A). She averred that there

"existed some question" regarding whether Ferguson was validly

served with process. Sauder asserted that it is "[Sauder's]

position that Ferguson was validly and properly served, that

[Sauder] and her counsel used due diligence in attempting to

locate and serve Ferguson, and that Ferguson's due process

rights have not been violated by entry of the default

judgment." Nevertheless, Sauder requested that the circuit

court enter an order setting aside the March 14, 2013, order as

void ab initio "out of an abundance of caution" and "in order

to serve substantial justice."

Sauder contended in her motion that if the default

judgment against Ferguson was obtained without adequate and

valid service of process, "then that [March 14, 2013 o]rder

must be set aside as void ab initio, and Sauder's suit and the

parties to that action (Sauder and Ferguson) must be restored

to their status prior to entry of the [o]rder on judgment,"

after which Sauder will "be entitled to exercise a non-suit as

2
Code § 38.2-2206(F) requires an insured intending to rely
upon uninsured motorist coverage to serve the insurance carrier
with process.
6
a matter of right" and "have six months within which to re-file

her suit against Ferguson."

Rockingham Mutual filed a response asserting that Sauder's

motion to set aside was fatally deficient because she alleged

in her motion that "Ferguson was validly and properly served,"

and therefore, failed to acknowledge any deficiency that would

render the judgment void. Subsequently, Sauder filed an

amended motion to set aside the default judgment on the grounds

that "substantial evidence exists" that Ferguson was not

properly served with process, and therefore, "substantial

evidence exists that the default judgment and [o]rder of March

14, 2013 is and was void ab initio."

Rockingham Mutual filed a memorandum in opposition to the

motion to set aside the default judgment. Sauder objected to

Rockingham's participation in the proceedings and argued that

Rockingham Mutual had no standing to oppose Sauder's motion.

The circuit court requested briefing from the parties and

conducted a hearing during which the parties presented

evidence, including testimony from Ferguson, who was called as

a witness by Sauder.3 Ferguson testified that although he lived

at the 1460 West Market Street address in 2008, he was living

3
Ferguson has not made a formal appearance in these
proceedings.
7
with his mother at the 2210 John Wayland Highway address when

Sauder's complaint was filed. Ferguson further testified he

was never served with a complaint or summons.

Upon consideration of the evidence, briefs, and arguments

of counsel, the circuit court denied Sauder's motion to set

aside the default judgment. As an initial matter, the court

ruled that Rockingham Mutual had standing to participate and

present evidence at the hearing. The court further ruled that

it would not exercise its discretion to set aside the default

judgment.

The circuit court found that based on Ferguson's testimony

in the prior declaratory judgment action providing his address

as 2210 John Wayland Highway, Sauder had "knowledge" of

Ferguson's current address but used the 1460 West Market Street

address to attempt service of the complaint and summons. The

court further noted that when Sauder served the motion for

default judgment, notice of motion for default judgment, and

proposed order entering default judgment at the 2210 John

Wayland Highway address, she did not include a copy of the

complaint or summons and made no further attempt to do so. The

court explained it could "see how many of the enumerated

grounds would cover situations, such as fraud, where the Court

should exercise its discretion on a moving plaintiff's behalf."

8
According to the court, "[t]he facts of this case do not call

for that discretion."

II. ANALYSIS

On appeal, Sauder argues that the circuit court erred in

denying her motion to set aside the default judgment and in

ruling that Rockingham Mutual had standing to participate in

the proceedings related thereto.

A. Circuit Court Had Discretion under Code § 8.01-
428(A).

We reject Sauder's first assertion that the circuit court

did not have discretion to deny her motion to set aside the

default judgment under Code § 8.01-428(A).

Code § 8.01-428(A) provides:

Upon motion of the plaintiff or judgment
debtor and after reasonable notice to the
opposite party, his attorney of record or other
agent, the court may set aside a judgment by
default or a decree pro confesso upon the
following grounds: (i) fraud on the court, (ii) a
void judgment, (iii) on proof of an accord and
satisfaction, or (iv) on proof that the defendant
was, at the time of service of process or entry
of judgment, a person in the military service of
the United States for purposes of 50 U.S.C. app.
§ 502.

(Emphasis added.) In stating that the court "may" set aside a

judgment of default, the language of the statute, according to

its ordinary meaning, places the decision of whether to set

aside a judgment by default within the discretion of circuit

court.

9
 We will apply the ordinary meaning of the word "may" in

construing a statute unless a contrary legislative intention

plainly appears. Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d

205, 210 (1949) ("Unless it is manifest that the purpose of the

legislature was to use the word 'may' in the sense of 'shall'

or 'must,' then 'may' should be given its ordinary meaning -

permission, importing discretion."). The General Assembly uses

the word "may" six times in Code § 8.01-428 while it uses the

word "shall" four times.4 "When the General Assembly uses two

4
The statute, in its entirety provides:

A. Default judgments and decrees pro confesso;
summary procedure. -- Upon motion of the
plaintiff or judgment debtor and after reasonable
notice to the opposite party, his attorney of
record or other agent, the court may set aside a
judgment by default or a decree pro confesso upon
the following grounds: (i) fraud on the court,
(ii) a void judgment, (iii) on proof of an accord
and satisfaction, or (iv) on proof that the
defendant was, at the time of service of process
or entry of judgment, a person in the military
service of the United States for purposes of 50
U.S.C. app. § 502. Such motion on the ground of
fraud on the court shall be made within two years
from the date of the judgment or decree.

B. Clerical mistakes. -- Clerical mistakes in all
judgments or other parts of the record and errors
therein arising from oversight or from an
inadvertent omission may be corrected by the
court at any time on its own initiative or upon
the motion of any party and after such notice, as
the court may order. During the pendency of an
appeal, such mistakes may be corrected before the
10
different terms in the same act, it is presumed to mean two

different things." Forst v. Rockingham Poultry Mktg. Coop.,

appeal is docketed in the appellate court, and
thereafter while the appeal is pending such
mistakes may be corrected with leave of the
appellate court.

C. Failure to notify party or counsel of final
order. -- If counsel, or a party not represented
by counsel, who is not in default in a circuit
court is not notified by any means of the entry
of a final order and the circuit court is
satisfied that such lack of notice (i) did not
result from a failure to exercise due diligence
on the part of that party and (ii) denied that
party an opportunity to pursue post-trial relief
in the circuit court or to file an appeal
therefrom, the circuit court may, within 60 days
of the entry of such order, modify, vacate, or
suspend the order or grant the party leave to
appeal. Where the circuit court grants the party
leave to appeal, the computation of time for
noting and perfecting an appeal shall run from
the entry of such order, and such order shall
have no other effect.

D. Other judgments or proceedings. -- This
section does not limit the power of the court to
entertain at any time an independent action to
relieve a party from any judgment or proceeding,
or to grant relief to a defendant not served with
process as provided in § 8.01-322, or to set
aside a judgment or decree for fraud upon the
court.

E. Nothing in this section shall constitute
grounds to set aside an otherwise valid default
judgment against a defendant who was not, at the
time of service of process or entry of judgment,
a servicemember for purposes of 50 U.S.C. app. §
502.
Code § 8.01-428 (emphases added).
11
222 Va. 270, 278, 279 S.E.2d 400, 404 (1981). The General

Assembly is well aware of the difference between the words

"may" and "shall," and we conclude it has not used these terms

synonymously within the language of Code § 8.01-428. See Roe

v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006).

Similarly, Rule 3:19(d)(1) states that "the court may"

relieve a defendant of a default judgment during the 21-day

period provided by Rule 1:1. We have held that "[w]hether to

relieve a defendant of a default judgment under Rule 3:19(d)(1)

rests within the sound discretion of a trial court." Specialty

Hosps. of Washington, LLC v. Rappahannock Goodwill Indus., 283

Va. 348, 353, 722 S.E.2d 557, 559 (2012). Additionally, Rule

3:19(b) states that "[p]rior to the entry of judgment, for good

cause shown the court may grant leave to a defendant who is in

default to file a late responsive pleading." Thus, we have

observed that "the use of the word 'may,' as opposed to

'shall,' in Rule 3:19(b) evidences that even after a defendant

shows good cause, a trial court has discretion to grant or

refuse the defendant's motion for leave to file late responsive

pleadings." AME Fin. Corp. v. Kiritsis, 281 Va. 384, 392, 707

S.E.2d 820, 824 (2011) (emphasis omitted).

Likewise, in construing the plain language of Code § 8.01-

428(A) providing that the court "may" set aside a default

judgment upon the grounds designated therein, we hold that the

12
decision whether to grant Sauder's motion to set aside the

default judgment rested within the sound discretion of the

circuit court.

B. The Circuit Court did not Abuse its Discretion

Sauder argues that even if the decision of whether to

grant her motion to set aside the default judgment was within

the circuit court's discretion, the circuit court abused its

discretion in refusing to set aside a judgment that was proved

to be void ab initio.

We have explained that the phrase "abuse of discretion"

means that the circuit court "has a range of choice, and that

its decision will not be disturbed as long as it stays within

that range and is not influenced by any mistake of law."

Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va.

346, 352, 717 S.E.2d 134, 137 (2011) (internal quotation marks

omitted); see also Hamad v. Hamad, 61 Va. App. 593, 607, 739

S.E.2d 232, 239 (2013) ("This bell-shaped curve of

reasonability governing our appellate review rests on the

venerable belief that the judge closest to the contest is the

judge best able to discern where the equities lie."). Thus,

"'[o]nly when reasonable jurists could not differ can we say an

abuse of discretion has occurred.'" Grattan v. Commonwealth,

278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v.

13
Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743

(2005)).

Pursuant to Code § 8.01-428(A), Sauder filed a motion

seeking to set aside the default judgment entered in her favor

upon the ground that the judgment was void for lack of personal

service on Ferguson.5 "There are strong policy reasons favoring

certainty of results in judicial proceedings. Accordingly, we

5
Subsection (A) of Code § 8.01-428 applies to "a motion
filed as part of the cause in which the judgment order was
entered." Basile v. American Filter Service, Inc., 231 Va. 34,
37, 340 S.E.2d 800, 802 (1986). This is distinguished from an
"independent action" seeking relief from judgment referenced in
section D of the statute. Therefore, as the revisor's note
states, "[a] court's inherent equity power to entertain an
independent action to relieve a party from any judgment has
been preserved" by Code § 8.01-428(D). Byrum v. Lowe & Gordon,
Ltd., 225 Va. 362, 365-66, 302 S.E.2d 46, 48 (1983). A party
seeking to set aside a default judgment in such an independent
action must prove five elements:

(1) a judgment which ought not, in equity and
good conscience, to be enforced; (2) a good
defense to the alleged cause of action on which
the judgment is founded; (3) fraud, accident, or
mistake which prevented the defendant in the
judgment from obtaining the benefit of his
defense; (4) the absence of fault or negligence
on the part of the defendant; and (5) the absence
of any adequate remedy at law.

Virginia Polytechnic Inst. & State Univ. v. Prosper Fin., Inc.,
284 Va. 474, 483, 732 S.E.2d 246, 251 (2012) (quoting Charles
v. Precision Tune, Inc., 243 Va. 313, 317-18, 414 S.E.2d 831,
833 (1992)).

14
attach a high degree of finality to judgments, whether obtained

by default or otherwise." McEwen Lumber Co. v. Lipscomb

Brothers Lumber Co., 234 Va. 243, 247, 360 S.E.2d 845, 848

(1987). Thus, "we have consistently construed Code § 8.01-428

and its predecessors, which create exceptions to the finality

of judgments, narrowly." Id. Furthermore, since Code § 8.01-

428 is a codification of pre-existing equitable practice, the

court's discretionary power is informed by equitable

considerations.

Although the circuit court observed that neither Sauder

nor Rockingham Mutual disputed the fact that the complaint and

summons were not served on Ferguson, it did not reach the issue

of whether the judgment was void. Instead, it ruled that the

facts did not justify the relief sought by Sauder. According

to the circuit court,

The record reveals at a minimum that
[Sauder] failed to procure proper service.
[Sauder] became aware of the service of process
failure. [Sauder] did not correct the error.
Nonetheless, [Sauder] asserted proper service and
the default judgment she sought was entered.
This alone is sufficient for the Court to deny
the motion.6

6
The circuit court clearly considered the absence of
proper service here. Along with the other circumstances noted
in the disposition, this demonstrates that, in the present
case, it cannot be said that "a relevant factor that should
have been given significant weight [was] not considered; . . .
an irrelevant or improper factor [was] considered and given
15
"The circuit court's factual findings based on the evidence

adduced at the ore tenus hearing on the motion to set aside the

default judgment will be reversed on appeal only if such

findings are plainly wrong or without evidence to support

them." Specialty Hosps., 283 Va. at 354, 722 S.E.2d at 559.

Based on the circuit court's findings, which are supported

by the record, we cannot say the circuit court abused its

discretion. As the circuit court found, Sauder had knowledge

of Ferguson's correct address when she attempted to serve the

complaint and summons on him at a prior address.7 When the

questions regarding the validity of the service became

apparent, Sauder used Ferguson's proper address for service of

additional pleadings but did not at any time serve the

complaint and summons at his current address. Furthermore,

Sauder proceeded to seek and obtain a default judgment

asserting valid service of the complaint and summons.

significant weight; [or that] the court, in weighing those
factors, commit[ed] a clear error of judgment." Landrum, 282
Va. at 352, 717 S.E.2d at 137.
7
Ferguson provided his address during testimony at his
deposition and at the declaratory judgment trial. Sauder was
represented by counsel at both proceedings. Knowledge acquired
by an attorney is imputed to the client. Yamada v. McLeod, 243
Va. 426, 433, 416 S.E.2d 222, 226 (1992).
16
Thereafter, she obtained a final judgment awarding the full

amount of damages she claimed.8 As the circuit court observed,

there may be situations in which one of the grounds enumerated

in the statute justify relief from judgment on a moving

plaintiff's behalf. In this case, however, Sauder is "the

architect of [her] own misfortune." Landcraft Co. v. Kincaid,

220 Va. 865, 874, 263 S.E.2d 419, 425 (1980) (decided under

predecessor statute, Code § 8-348).9

8
We have held that a circuit court erred in denying a
motion to set aside a default judgment for lack of service when
a defendant challenges the circuit court's exercise of personal
jurisdiction and seeks to preclude enforcement of the judgment.
See, e.g., Lifestar Response of Md., Inc. v. Vegosen, 267 Va.
720, 724-25, 594 S.E.2d 589, 591-92 (2004); O'Connell v. Bean,
263 Va. 176, 178-80, 556 S.E.2d 741, 742 (2002); Dennis v.
Jones, 240 Va. 12, 19-20, 393 S.E.2d 390, 394 (1990). In this
case, however, Sauder does not seek to set aside the judgment
so as to preclude its enforcement against Ferguson; rather, she
seeks to continue these proceedings so as to nonsuit her case
and take a "second bite at the apple" against Ferguson. Yet,
Ferguson has not made a formal appearance to raise a challenge
to the judgment himself. Thus, in contrast to a defendant who
challenges a judgment based on the absence of notice and an
opportunity to be heard, Sauder was not deprived of an
opportunity to fully and fairly present her claims.
9
We find no merit in Sauder's contention that Rockingham
Mutual lacked standing to present evidence and argument in
opposition to her motion to set aside the default judgment.
Although Sauder argues that Rockingham Mutual is not her
uninsured motorist carrier and has no stake in the matter,
Rockingham Mutual was served with the complaint and summons as
her purported uninsured motorist carrier, and the circuit court
ordered that "Rockingham Mutual is liable for its contractual
portion of Ms. Sauder's Uninsured Motorist Policy."
17
 III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the circuit court.

Affirmed.

JUSTICE POWELL, with whom JUSTICE MIMS joins, concurring.

Although I agree with the outcome of this case, I write

separately because I disagree with the basis for the majority’s

decision. Based on the circuit court's findings, which are

supported by the evidence, I would conclude that Sauder is

estopped from denying the validity of the judgment.

As the circuit court found, Sauder had knowledge of

Ferguson's correct address when she attempted to serve the

complaint and summons on him at a prior address.1 When the

questions regarding the validity of the service became

apparent, Sauder used Ferguson's proper address for service of

additional pleadings but did not at any time serve the

complaint and summons at his current address. Furthermore,

Sauder proceeded to seek and obtain a default judgment

asserting valid service of the complaint and summons. See

1
Ferguson provided his address during testimony at his
deposition and at the trial in the declaratory judgment action.
Sauder was represented by counsel at both proceedings.
Knowledge acquired by an attorney is imputed to the client.
Yamada v. McLeod, 243 Va. 426, 433, 416 S.E.2d 222, 226
(1992)(collecting cases).
18
Eubank & Caldwell, Inc. v. Fuller, 156 Va. 635, 638, 158 S.E.

884, 885 (1931) (a party with knowledge of the facts affecting

the validity of a judgment who “accepts and treats [the

judgment] as valid and binding in all respects . . . will not

be permitted later to show its invalidity[,] for he is

estopped”); Smith v. Litton, 167 Va. 263, 266, 188 S.E. 214,

215 (1936) (“A man cannot say at one time that the transaction

is valid and thereby obtain some advantage to which he could

only be entitled on the footing that it is valid, and at

another time say it is void for the purpose of securing some

further advantage.”) (citation and internal quotation marks

omitted); see also Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268

Va. 377, 381, 601 S.E.2d 648, 650 (2004) (judicial estoppel

prohibits a party “from taking inconsistent positions within a

single action”).

Under these facts, therefore, Sauder cannot now deny the

validity of the judgment and is judicially estopped from

seeking to set it aside.2 For these reasons, I would affirm

the judgment of the circuit court.

2
I find no merit in Sauder’s contention that Rockingham
Mutual lacked standing to present evidence and argument in
opposition to her motion to set aside the default judgment.
Although Sauder argues that Rockingham Mutual is not her
uninsured motorist carrier and has no stake in the matter,
Rockingham Mutual was served with the complaint and summons as
her purported uninsured motorist carrier, and the circuit court
19
ordered that “Rockingham Mutual is liable for its contractual
portion of Ms. Sauder's Uninsured Motorist Policy.”
20