Byrum v. Lowe & Gordon, Ltd., 801458

• Decision Date: 29 April 1983
• Docket Number: No. 801458,801458
• Citation: 225 Va. 362,302 S.E.2d 46
• Court: Virginia Supreme Court
• Parties: Elizabeth Y. BYRUM, et al. v. LOWE & GORDON, LTD. Record

Page 46

302 S.E.2d 46

225 Va. 362

Elizabeth Y. BYRUM, et al. v. LOWE & GORDON, LTD.

Record No. 801458.

Supreme Court of Virginia.

April 29, 1983.

J. Benjamin Dick, Charlottesville, for appellants.

John C. Lowe, Charlottesville (Craig T. Redinger, Lowe & Gordon, Ltd., Charlottesville, on briefs), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice.

STEPHENSON, Justice.

In May, 1979, Lowe & Gordon, Ltd., obtained a judgment against Elizabeth and Barney Byrum. The Byrums moved to set aside this judgment in April, 1980, alleging the court erred for various reasons in entering judgment against them. However, the threshold issue on appeal is whether the 1979 judgment could be attacked 11 months later. Concluding it could not, we do not reach the issue of whether the original judgment was proper.

The appellee, a professional corporation engaged in the practice of law, originally filed suit against the Byrums in June, 1978, for money it claimed was due it for legal services rendered. The Byrums, representing themselves, responded to this suit, giving the court an address in Cabin John, Maryland.

In February, 1979, Lowe & Gordon nonsuited the first suit and personally served the Byrums with a new motion for judgment which increased the amount alleged to be due. The Byrums, again proceeding pro se, filed a timely response to this motion for judgment. However, this responsive pleading contained no address, in violation of Code § 8.01-319.

In May, 1979, Lowe & Gordon filed a motion for default and summary judgment. It alleged the Byrums had failed to keep the court and opposing counsel advised of an address where they could be reached and that this made prosecution of the case impossible. A copy of this motion was sent certified mail to the Byrums' home in Virginia and other copies were served by the Secretary of the Commonwealth at two addresses in Maryland, including the Cabin John address the Byrums had previously given the court.

In May, 1979, the court held the Byrums were in default and entered judgment for Lowe & Gordon. The court stated that the Byrums' failure to provide an address had prevented the case from proceeding in an orderly manner, that the Byrums had been "given every reasonable opportunity" to appear, and that Lowe & Gordon had "acted entirely reasonably and patiently in attempting to contact" the Byrums. It concluded the Byrums had engaged in "a long, vexatious, dilatory and unreasonable course of conduct."

As no action was taken to modify this judgment within 21 days, it became final. Rule 1:1. Moreover, no appeal was taken from the May judgment in accordance with our Rules of Court. However, in April, 1980, the Byrums, by counsel, filed a "Motion to Vacate Default Judgment Per § 8.01-428."

The Byrums admitted that one of the Maryland addresses was the proper place to reach them and that notice of Lowe & Gordon's motion for default and summary judgment had been received, although a family member failed to forward it to them in a timely fashion. The Byrums further admitted that Lowe & Gordon had attempted to contact them by telephone, but they had failed to provide an address because they felt they were being harassed. After a hearing on this motion, the trial court refused to set aside the May, 1979, judgment, and the Byrums timely appealed from this order.

Code § 8.01-428 ^* contains three paragraphs. It is clear that paragraph B, which addresses clerical mistakes, is inapplicable. Paragraph A lists three grounds for setting aside a default judgment. There is no allegation of an accord and satisfaction, and the Byrums have stated they are not proceeding on the ground of fraud on the court. Therefore, in order to fall within paragraph A of the statute, the May, 1979, judgment would have to be void. This is not the case.

The Byrums were properly served with a motion for judgment in February, 1979. The court therefore had personal jurisdiction over them. Further, the Byrums admitted that notice of Lowe & Gordon's attempt to obtain a default judgment against them was received in Cabin John. Therefore, the May, 1979, judgment was not void, and the Byrums are not entitled to relief under § 8.01-428 A.

As an alternative, the Byrums argue that paragraph C of the statute is applicable. This paragraph also lists three grounds for relief, and again, two, fraud on the court and ineffective service of process, do not apply. The Byrums therefore rely on the first part of this paragraph which states that "[t]his 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 ...."

While the language the Byrums rely on appears broad, we have held it is to be given a narrow construction. Landcraft Co. v. Kincaid, 220 Va. 865, 263 S.E.2d 419 (1980) (involving the predecessor of Code § 8.01-428). This is so because judicial...