Running From Judgment: Does a Post-Judgment Appearance Create Personal Jurisdiction for the Prior Default Judgment?
August 4, 2020
McCulley v. Brooks & Co. Gen. Contrs., Inc.
This controversy came to fruition because of a dispute regarding whether a judgment, which was void for lack of personal jurisdiction can be made valid by a subsequent appearance by the judgment debtor after the entry of judgment. McCulley v. Brooks & Co. Gen. Contrs., Inc., 816 S.E.2d 270 (2018). After the tenant (“McCulley”) failed to make payments owed to the landlord (Brooks & Co., referred to hereinafter as “Brooks”), Brooks filed a lawsuit against McCulley for the money McCulley owed Brooks. Brooks served process on McCulley by posting the complaint on McCulley’s front door, but failed to complete the additional statutory requirements of mailing a copy of the complaint to McCulley 10 days before obtaining a default judgment and to file a certificate of mailing with the clerk of the circuit court. McCulley, 816 S.E.2d 270, 271. The circuit court entered a default judgment against McCulley.
After the judgment was entered, the attorney for McCulley made a special appearance before the court to contest the original judgment. “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.” 816 S.E. 2d at 272 (referencing the original motion).
The circuit court held a hearing on McCulley’s motion to vacate and ruled that the initial service on him had been defective but that McCulley had waived any objection to this defect by making a general appearance. Id. at 72. McCulley appealed this decision to the Supreme Court of Virginia.
The Court distinguished the effect of making a general appearance prior to the entry of judgment versus making such an appearance after the entry of judgment. A defendant’s general appearance before entry of judgment waives any objection to the service of process by voluntarily submitting to the court’s jurisdiction. Id. (citing Lyren v. Ohr, 271 Va. 155, 159 (2006). The court noted that it had never held that a general appearance after the entry of judgment retroactively waives objections to issues regarding personal jurisdiction. Id. at 273. In the words of the court, a post judgment entry of appearance is “too little too late.” Id. Just as medicine may cure a sick man of a fatal disease but not revive him after his burial, a litigant can ‘cure’ the absence of personal jurisdiction by making a general appearance prior to final judgment but cannot resurrect a void judgment thereafter.
The important lesson from this case is that when an absent judgment debtor has not been properly served, a default judgment will be void. In the event that judgment-debtor engages in post-judgment proceedings, such involvement does not waive any objection to the presiding court’s prior lack of personal jurisdiction over the debtor. It is imperative that attorneys complete each step required for proper service of process to absent debtors.