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Sauder v. Ferguson

Supreme Court of Virginia

April 16, 2015

SUSAN M. SAUDER
v.
DENNIE LEE FERGUSON, JR

Page 665

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

Affirmed.

Mark S. Lindensmith (Gregory S. Hooe; Eric D. Yost; Roger T. Creager; Marks & Harrison; Creager Law Firm, on briefs), for appellant.

Jason A. Botkins (J. Jay Litten; Litten & Sipe, on brief), for appellee.

JUSTICE POWELL, with whom JUSTICE MIMS joins, concurring.

Page 666

PRESENT: All the Justices

OPINION

ELIZABETH A. McCLANAHAN, JUSTICE

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 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 Sauder was required to

Page 667

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 ...


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