THE CIRCUIT COURT OF THE CITY OF RICHMOND W. REILLY MARCHANT,
ARTHUR KELSEY JUSTICE
case, a landlord obtained a default judgment against a
commercial tenant and its guarantor for unpaid rent. The
judgment was void as to the guarantor, however, because the
landlord failed to properly serve the complaint on him.
Despite this fact, the circuit court found that the guarantor
had entered a general appearance during post-judgment
enforcement proceedings and thereby had waived any objection
to the validity of the default judgment. We disagree and
2013, Brooks & Co. General Contractors, Inc.
("Brooks & Co.") leased office and warehouse
space to Plastic Lumber & Outdoor, LLC ("Plastic
Lumber"). Colin McCulley personally guaranteed Plastic
Lumber's lease obligations. In May 2016, Brooks & Co.
filed a complaint against Plastic Lumber and McCulley for
unpaid rent, utilities, late fees, interest, and attorney
fees and costs.
& Co. served process on McCulley by posting it to his
front door pursuant to Code § 8.01-296(2)(b),
see J.A. at 68, but the record fails to demonstrate
that Brooks & Co. followed the additional requirements of
that statute to mail a copy of the process to McCulley 10
days before obtaining a default judgment and to file a
certificate of mailing in the circuit court clerk's
office, see id. at 95. After neither Plastic Lumber
nor McCulley filed responsive pleadings, Brooks & Co.
obtained a default judgment against both defendants. The
circuit court entered the default judgment on July 7, 2016.
August 24, 2016, the circuit court clerk issued a summons
commanding McCulley to appear before a commissioner in
chancery on September 15 to answer debtor's
interrogatories. McCulley's counsel thereafter contacted
the commissioner and successfully requested that the date be
rescheduled to September 27. On September 19, McCulley filed
a motion to vacate the default judgment in the circuit court,
the first sentence of which reads:
COMES NOW COLIN MCCULLEY by counsel, MAKING A SPECIAL
APPEARANCE FOR THE SOLE PURPOSE OF CONTESTING THIS
COURT'S EXERCISE OF PERSONAL JURISDICATION [sic] BUT NOT
OTHERWISE SUBMITTING TO THE COURT'S PERSONAL
JURISDICATION [sic], pursuant to Virginia Code §
8.01-428(A) and respectfully prays that this Honorable Court
will vacate the Default Judgment . . . as the same is a void
Id. at 65. The motion asserted that Brooks & Co.
had failed to properly serve the complaint, thereby depriving
the circuit court of personal jurisdiction over McCulley, and
that the default judgment was therefore void. See
id. at 65-67. McCulley concluded his motion by
reiterating that he had "made this SPECIAL APPEARANCE
for the sole purpose of contesting this Court's exercise
of personal jurisdiction over him." Id. at 67.
Brooks & Co. did not file any written response to the
motion and later made no claim that its attempted service of
process was valid.
point prior to September 27, 2016, McCulley's counsel
advised opposing counsel that he would ask the commissioner
to stay the debtor's interrogatories until the circuit
court had an opportunity to rule on his motion to vacate the
default judgment. See id. at 85, 90. On September
26, the day before the rescheduled meeting at the
commissioner's office, Brooks & Co.'s counsel
emailed his response: "There is no legal basis on which
to stay the interrogatories, as such, I would object to the
seeking of any stay of collection proceedings, as the
judgment is final." Id. at 90. A later email
from Brooks & Co.'s counsel to the commissioner
confirmed that McCulley had made the stay request and that
the commissioner had ultimately rejected it. See id.
debtor's-interrogatory proceedings continued for several
months. After an order of production directed to McCulley
went unanswered, Brooks & Co.'s counsel requested
that the commissioner issue a show-cause order demanding
compliance upon penalty of being held in contempt. See
id. The commissioner responded by instructing the
parties that "[a]ny enforcement action would have to
come from the Circuit Court." Id. at 92. He
advised them to present the enforcement request "at the
same time as the Motion to Vacate [was] heard" in the
circuit court. Id.
circuit court conducted a hearing on McCulley's motion to
vacate and ruled that the "initial service" of
process on him "was defective" but that
"McCulley waived any objection to this defect in service
by making a general appearance in this case through his
post-judgment participation in Debtor's
Interrogatories." Id. at 95. The court's
letter opinion, incorporated by reference into its final
order, held that a general appearance during enforcement
proceedings on a final judgment could effectively waive any
claim that the judgment was void ab initio. See id.
appeal, Brooks & Co. concedes that it failed to certify
that it had satisfied the mailing requirement of Code §
8.01-296(2)(b). The only issue before us is whether
McCulley waived his right to challenge the default judgment
as void ab initio by participating in the