Virginia Lawyers Weekly//October 3, 2023
Virginia Lawyers Weekly//October 3, 2023//
Where appellant’s complaint alleged appellees defaulted on a loan, a default judgment order is vacated because the complaint was missing counsel’s signature. Appellant did not obtain leave of the court to correct the missing signature. As a result, “the complaint was a nullity and no valid proceedings, including issuance of a default judgment, could follow from it.”
“When the circuit court entered the default judgment order in 2016, Code § 8.01-271.1 (2015) stated, ‘[E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name ….’
“By signing the pleading, the attorney certifies that he has read the pleading, that the pleading is well grounded in fact and is warranted by existing law or makes a good faith argument for a change to the law, and that the pleading is not interposed for an improper purpose. …
“‘If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.’ …
“Code § 8.01-271.1 as it existed in 2016 was silent regarding whether the pleader must obtain leave of court to correct the omitted signature. However, Rule 1:8 (2016) stated that, ‘No amendments shall be made to any pleading after it is filed save by leave of court.’ …
“[T]he circuit court issued a default judgment which proceeded from a complaint that contained no signature. Based on Virginia Supreme Court precedent, the complaint was a nullity and no valid proceedings, including issuance of a default judgment, could follow from it.
Appellant “Windset attempted to correct the omitted signature. However, the circuit court found that Windset did not obtain leave of court to correct the omitted signature, nor was the omitted signature served on the opposing party.
“To the extent that adding an omitted signature is an amendment, Rule 1:8 requires that an amendment to any pleading must be made by leave of court, and amendments made without leave of court are without effect. …
“Our Supreme Court’s jurisprudence dictates that Windset’s unsigned complaint had no legal effect, and no valid proceedings could have resulted from it.
“Windset’s attempt to correct the omitted signature was ineffectual. The signature defect on the complaint places the default judgment in the category of orders ‘that the court had no power to render.’
“Therefore, the circuit court did not err in vacating the default judgment order. …
“Virginia case law provides that a void order can be directly or collaterally attacked in any court at any time. … Therefore, the circuit court did not err in vacating the default judgment order outside of the 21 days after entry of the final order provided in Rule 1:1, as Windset asserts.
“The circuit court’s ruling also does not implicate the two-year statute of limitations that is provided in Code § 8.01-428(A), because the court’s ruling was not based on a finding of fraud perpetrated upon the court.
“Finally, the circuit court’s order vacating the default judgment was not based on authority provided in Code § 8.01-428(D); thus, it was not required to articulate its findings regarding the five necessary elements for setting aside a judgment pursuant to Code § 8.01-428(D)[.]”
Windset Capital Corp. v. Debosky, et al., Record No. 1216-22-4, Sept. 12, 2023. CAV (unpublished opinion) (Humphreys) From the Circuit Court of Loudoun County. (Irby) Peter S. Askin (John P. O’Herron; Tracy Kissler; ThompsonMcMullan, P.C.; LegumFitzpatrick, PLC, on briefs), for appellant. Alex Heidt (The Heidt Law Firm, PLLC, on brief), for appellees. VLW 023-7-351, 9 pp.