Criminal – Man fails to vacate default judgment forfeiting approximately $21,000

Where a man moved to set aside a default judgment ordering the civil forfeiture of approximately $21,000 seized from him during an arrest, his petition was denied. He failed to demonstrate the absence of fault or negligence.

The circuit court did not err in finding that Harris failed to demonstrate the absence of fault or negligence as required by the fourth element of the statute

Background

Donald William Harris Jr. appeals the circuit court’s denial of his petition under Code § 8.01-428(D) to set aside a default judgment ordering the civil forfeiture of approximately $21,000 seized from him during an arrest.

Standard

To obtain relief under Code § 8.01-428(D), the moving party must establish: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant and (5) the absence of any adequate remedy at law.

Analysis

The circuit court did not err in finding that Harris failed to demonstrate the absence of fault or negligence as required by the fourth element of the statute. Over seven years passed between Harris’s arrest in June 2015 and his petition to set aside the forfeiture order in January 2023.

Even accepting his claim that his defense attorney told him to wait one year after the nolle pros of his criminal charges to seek his funds, he waited until February 2017 before contacting the sheriff’s office, which was more than a year. According to Harris, it was not until then that he discovered that the seized funds were not at the sheriff’s office’s property department.

Furthermore, accepting Harris’s claim that he did not discover the forfeiture order until May 2018, he still waited nearly five years to petition the court to set it aside. Given the significant gaps in time between his apparent discovery that there had been a forfeiture order entered and his actions to set that order aside, the circuit court’s finding that “there [was] not an absence . . . of fraud or negligence on the part of [Harris]” was not plainly wrong or without evidence to support it.

As it is Harris’s burden to meet all five elements of the common-law test, there is no need to parse through his claims as to elements three and five. Accordingly, the circuit court’s judgment was neither plainly wrong nor without evidentiary support.

Service

Harris assigns error to the circuit court granting default judgment because there was defective service of process. Despite this claim, he does not cite the service of process statutes or any case law addressing service of process, and “[u]nsupported assertions of error ‘do not merit appellate consideration.’”

Harris appears to argue in his brief that tangible receipt of service of process is a necessary element to prove valid service. However, the only authority Harris cites is Code § 8.01-428(B),9 allowing a court to correct “[s]crivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, [also known as] clerical mistakes.”

“Examples of clerical errors include a typographical error made by a court reporter while transcribing a court proceeding, or an unintended error in the drafting of a divorce decree.” In his brief, Harris claims that the Commonwealth’s service of process was “marginal” “[a]t best” and then lists 10 conclusory statements of fact in which he alleges it made mistakes.

Included in this list are claims that service of process was made at Harris’s former residence; the service affidavit contained a badge number, but not the name of the process server; the certificate of mailing on the notice of seizure had no date or address on it and the certificate of service for the notice of forfeiture had no address on it.

These are not clerical mistakes because they are not mistakes within the judgment or record that cause the record to “speak falsely.” Aside from his reliance upon Code § 8.01-428(B), Harris fails to explain how the lack of an address or date on the notices for seizure and forfeiture legally impacted the validity of the service.

Service of process was made at the South Riding address because that was the address attached to his driver’s license. If Harris wished to challenge the service affidavit, it appears the badge number listed thereon provided sufficient information for Harris to do so. The record supports the circuit court’s conclusion that service on Harris was proper.

Affirmed.

Harris Jr. v. Commonwealth, Record No. 0164-25-4, June 16, 2026. CAV (unpublished opinion) (Duffan). From the Circuit Court of Fairfax County (Kassabian). (Rocco DeLeonardis; Virginia Law, PLC, on briefs), for appellant. (Philip C. Krone; Alexander Francuzenko; Cook Craig & Francuzenko, PLLC, on brief), for appellees. VLW 026-7-248. 9 pp.

Full-Text Opinion
VLW 026-7-248