PRESENT: All the Justices 

SUSAN M. SAUDER 

 OPINION BY 

v. Record No. 140805 JUSTICE ELIZABETH A. McCLANAHAN 

 April 16, 2015 

DENNIE LEE FERGUSON, JR. 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Bruce D. Albertson, Judge 

 Susan M. Sauder appeals from the final order of the 

circuit court denying her motion to set aside the default 

judgment entered in her favor against Dennie Lee Ferguson, Jr. 

Sauder argues the circuit court had no discretion to deny her 

motion because the default judgment was void ab initio as a 

result of her failure to obtain valid service upon Ferguson. 

In the alternative, she contends the circuit court abused its 

discretion in failing to set aside a default judgment that was 

void ab initio. We will affirm the judgment of the circuit 

court. 

I. BACKGROUND 

 On October 15, 2009, Sauder and Ferguson were involved in 

an automobile accident in which the vehicles being operated by 

each of them collided with one another. Subsequently, 

Progressive Gulf Insurance Company ("Progressive"), which 

provided coverage on the vehicle Ferguson was operating at the 

time of the accident, filed a declaratory judgment action 

seeking a determination that it was not obligated to provide 
2

coverage for the accident because Ferguson was not a permissive 

user of the vehicle. Progressive named as defendants, 

Rockingham Mutual Insurance Company ("Rockingham Mutual"), 

Rockingham Casualty Company ("Rockingham Casualty"), Sauder and 

Ferguson. Because Rockingham Mutual does not provide 

automobile insurance coverage, it was dismissed from the action 

by order of nonsuit. Rockingham Casualty remained in the 

action due to potential liability under an uninsured motorist 

policy covering Sauder at the time of the accident. 

 During the pendency of the declaratory judgment action, 

Ferguson testified in a deposition taken on August 23, 2010, 

that he was currently residing with his mother at 2210 John 

Wayland Highway in Harrisonburg and was living at that address 

at the time of the accident. He also testified he was employed 

in his mother's business and provided both his and his mother's 

current cellular telephone numbers. Sauder was represented by 

counsel who conducted examination of Ferguson on Sauder's 

behalf. 

 At the trial of the declaratory judgment action, which 

took place on May 19, 2011, Ferguson again testified that he 

was residing with his mother and employed in her business. 

Sauder was represented by counsel who was also present at the 

trial. At the conclusion of the trial, the circuit court ruled 

that Ferguson was an uninsured motorist at the time of the 
3

accident. Thus, Rockingham Casualty's policy of uninsured 

motorist insurance provides coverage for the first $100,000 of 

any judgment that Sauder is legally entitled to recover against 

Ferguson for damages arising from the accident. 

 On June 10, 2011, Sauder filed, by different counsel, a 

complaint against Ferguson seeking damages arising from the 

automobile accident. On June 29, 2011, Sauder served Ferguson 

by posting at 1460 West Market Street in Harrisonburg, the 

address that was listed for Ferguson on the police report of 

the accident, instead of the address given by Ferguson in his 

deposition and at trial in the declaratory judgment action. On 

the same date, Sauder served Rockingham Mutual, by personal 

service on its registered agent, instead of Rockingham 

Casualty, which provides the uninsured motorist coverage for 

the accident.1

 On August 29, 2012, Sauder filed a motion for entry of 

default judgment on the grounds that no pleadings in response 

to Sauder's complaint had been filed on behalf of Ferguson. 

Sauder filed a subsequent motion for entry of default judgment 

on September 24, 2012. In this motion, Sauder stated that the 

second motion for entry of default judgment was filed because 

 

1

 W. Neal Menefee is the registered agent for both 

Rockingham Mutual and Rockingham Casualty. 
4

Sauder was required to notify Ferguson of the implications of 

not appearing at the hearing scheduled on October 17, 2012. On 

October 2, 2012, Sauder attempted to serve Ferguson at the 1460 

West Market Street address with the motion, notice of motion 

for entry of default judgment on October 17, 2012, and proposed 

order entering judgment by default. She also mailed the 

motion, notice, and proposed order to the 1460 West Market 

Street address as well as an address in Ashland, Kentucky. The 

proof of service was returned showing that Ferguson was "Not 

Found" and with a notation of "Moved." 

 On October 12, 2012, Sauder served the motion, notice of 

motion, and proposed order on Ferguson at the 2210 John Wayland 

Highway address in Harrisonburg by delivery to his mother. 

Neither Ferguson nor anyone on his behalf appeared, and an 

order of default judgment was entered by the circuit court on 

November 29, 2012. The order instructed that a copy be served 

upon Ferguson at 220 (instead of 2210) John Wayland Highway in 

Harrisonburg. A proof of service shows that Ferguson was 

personally served with the order entering judgment by default 

on December 10, 2012. Various papers were also served on the 

secretary to W. Neal Menefee as registered agent for 

"Rockingham Group Insurance" on January 8, 2013. 

 On January 9, 2013, the circuit court entered an order 

setting a bench trial on damages for March 4, 2013. Sauder 
5

personally served the scheduling order on Ferguson at the 2210 

John Wayland Highway address. Menefee was also personally 

served with this order. On March 4, 2013, Sauder presented 

evidence of her damages and neither Ferguson nor anyone on his 

behalf appeared. On March 14, 2013, the circuit court entered 

an order awarding Sauder $300,000 in damages. The order 

provided that "Rockingham Mutual is liable for its contractual 

portion of Ms. Sauder's Uninsured Motorist Policy" based upon 

the following grounds: 

Rockingham Mutual Insurance Company and/or 

Rockingham Casualty Company ("Rockingham Mutual") 

– same name, both entities of the Rockingham 

Group with the same address, registered agent, 

payer of her medical expense coverage, 

corresponded with Plaintiff's attorney, and party 

in the Declaratory Action participated in the 

Declaratory Action and cooperated with 

Plaintiff's counsel prior to the Court's ruling. 

Ms. Sauder was insured by a policy with 

Rockingham Mutual Insurance Company and/or 

Rockingham Casualty Company ("Rockingham Mutual") 

due to its Uninsured Motorist Coverage Policy 

with coverage limits of $100,000[.] 

 On April 5, 2013, Rockingham Casualty filed a complaint 

for declaratory judgment seeking a determination that Sauder 

was not legally entitled to collect the judgment rendered on 

March 14, 2013, because Ferguson was never served with the 

summons or complaint and Rockingham Casualty was never served 
6

as required by Code § 38.2-2206(F).2 Thereafter, on May 14, 

2013, Sauder filed a motion to set aside the default judgment 

pursuant to Code § 8.01-428(A). She averred that there 

"existed some question" regarding whether Ferguson was validly 

served with process. Sauder asserted that it is "[Sauder's] 

position that Ferguson was validly and properly served, that 

[Sauder] and her counsel used due diligence in attempting to 

locate and serve Ferguson, and that Ferguson's due process 

rights have not been violated by entry of the default 

judgment." Nevertheless, Sauder requested that the circuit 

court enter an order setting aside the March 14, 2013, order as 

void ab initio "out of an abundance of caution" and "in order 

to serve substantial justice." 

 Sauder contended in her motion that if the default 

judgment against Ferguson was obtained without adequate and 

valid service of process, "then that [March 14, 2013 o]rder 

must be set aside as void ab initio, and Sauder's suit and the 

parties to that action (Sauder and Ferguson) must be restored 

to their status prior to entry of the [o]rder on judgment," 

after which Sauder will "be entitled to exercise a non-suit as 

 

2

 Code § 38.2-2206(F) requires an insured intending to rely 

upon uninsured motorist coverage to serve the insurance carrier 

with process. 
7

a matter of right" and "have six months within which to re-file 

her suit against Ferguson." 

 Rockingham Mutual filed a response asserting that Sauder's 

motion to set aside was fatally deficient because she alleged 

in her motion that "Ferguson was validly and properly served," 

and therefore, failed to acknowledge any deficiency that would 

render the judgment void. Subsequently, Sauder filed an 

amended motion to set aside the default judgment on the grounds 

that "substantial evidence exists" that Ferguson was not 

properly served with process, and therefore, "substantial 

evidence exists that the default judgment and [o]rder of March 

14, 2013 is and was void ab initio." 

 Rockingham Mutual filed a memorandum in opposition to the 

motion to set aside the default judgment. Sauder objected to 

Rockingham's participation in the proceedings and argued that 

Rockingham Mutual had no standing to oppose Sauder's motion. 

The circuit court requested briefing from the parties and 

conducted a hearing during which the parties presented 

evidence, including testimony from Ferguson, who was called as 

a witness by Sauder.3

 Ferguson testified that although he lived 

at the 1460 West Market Street address in 2008, he was living 

 

3

 Ferguson has not made a formal appearance in these 

proceedings. 
8

with his mother at the 2210 John Wayland Highway address when 

Sauder's complaint was filed. Ferguson further testified he 

was never served with a complaint or summons. 

 Upon consideration of the evidence, briefs, and arguments 

of counsel, the circuit court denied Sauder's motion to set 

aside the default judgment. As an initial matter, the court 

ruled that Rockingham Mutual had standing to participate and 

present evidence at the hearing. The court further ruled that 

it would not exercise its discretion to set aside the default 

judgment. 

 The circuit court found that based on Ferguson's testimony 

in the prior declaratory judgment action providing his address 

as 2210 John Wayland Highway, Sauder had "knowledge" of 

Ferguson's current address but used the 1460 West Market Street 

address to attempt service of the complaint and summons. The 

court further noted that when Sauder served the motion for 

default judgment, notice of motion for default judgment, and 

proposed order entering default judgment at the 2210 John 

Wayland Highway address, she did not include a copy of the 

complaint or summons and made no further attempt to do so. The 

court explained it could "see how many of the enumerated 

grounds would cover situations, such as fraud, where the Court 

should exercise its discretion on a moving plaintiff's behalf." 
9

According to the court, "[t]he facts of this case do not call 

for that discretion." 

II. ANALYSIS 

 On appeal, Sauder argues that the circuit court erred in 

denying her motion to set aside the default judgment and in 

ruling that Rockingham Mutual had standing to participate in 

the proceedings related thereto. 

A. Circuit Court Had Discretion under Code § 8.01-

428(A). 

 We reject Sauder's first assertion that the circuit court 

did not have discretion to deny her motion to set aside the 

default judgment under Code § 8.01-428(A). 

 Code § 8.01-428(A) provides: 

 Upon motion of the plaintiff or judgment 

debtor and after reasonable notice to the 

opposite party, his attorney of record or other 

agent, the court may set aside a judgment by 

default or a decree pro confesso upon the 

following grounds: (i) fraud on the court, (ii) a 

void judgment, (iii) on proof of an accord and 

satisfaction, or (iv) on proof that the defendant 

was, at the time of service of process or entry 

of judgment, a person in the military service of 

the United States for purposes of 50 U.S.C. app. 

§ 502.

(Emphasis added.) In stating that the court "may" set aside a 

judgment of default, the language of the statute, according to 

its ordinary meaning, places the decision of whether to set 

aside a judgment by default within the discretion of circuit 

court. 
10

We will apply the ordinary meaning of the word "may" in 

construing a statute unless a contrary legislative intention 

plainly appears. Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 

205, 210 (1949) ("Unless it is manifest that the purpose of the 

legislature was to use the word 'may' in the sense of 'shall' 

or 'must,' then 'may' should be given its ordinary meaning - 

permission, importing discretion."). The General Assembly uses 

the word "may" six times in Code § 8.01-428 while it uses the 

word "shall" four times.4

 "When the General Assembly uses two 

 

4

 The statute, in its entirety provides: 

A. Default judgments and decrees pro confesso; 

summary procedure. -- Upon motion of the 

plaintiff or judgment debtor and after reasonable 

notice to the opposite party, his attorney of 

record or other agent, the court may set aside a 

judgment by default or a decree pro confesso upon 

the following grounds: (i) fraud on the court, 

(ii) a void judgment, (iii) on proof of an accord 

and satisfaction, or (iv) on proof that the 

defendant was, at the time of service of process 

or entry of judgment, a person in the military 

service of the United States for purposes of 50 

U.S.C. app. § 502. Such motion on the ground of 

fraud on the court shall be made within two years 

from the date of the judgment or decree. 

B. Clerical mistakes. -- Clerical mistakes in all 

judgments or other parts of the record and errors 

therein arising from oversight or from an 

inadvertent omission may be corrected by the 

court at any time on its own initiative or upon 

the motion of any party and after such notice, as 

the court may order. During the pendency of an 

appeal, such mistakes may be corrected before the 
11

different terms in the same act, it is presumed to mean two 

different things." Forst v. Rockingham Poultry Mktg. Coop., 

 

appeal is docketed in the appellate court, and 

thereafter while the appeal is pending such 

mistakes may be corrected with leave of the 

appellate court. 

C. Failure to notify party or counsel of final 

order. -- If counsel, or a party not represented 

by counsel, who is not in default in a circuit 

court is not notified by any means of the entry 

of a final order and the circuit court is 

satisfied that such lack of notice (i) did not 

result from a failure to exercise due diligence 

on the part of that party and (ii) denied that 

party an opportunity to pursue post-trial relief 

in the circuit court or to file an appeal 

therefrom, the circuit court may, within 60 days 

of the entry of such order, modify, vacate, or 

suspend the order or grant the party leave to 

appeal. Where the circuit court grants the party 

leave to appeal, the computation of time for 

noting and perfecting an appeal shall run from 

the entry of such order, and such order shall 

have no other effect. 

D. Other judgments or proceedings. -- This 

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, 

or to grant relief to a defendant not served with 

process as provided in § 8.01-322, or to set 

aside a judgment or decree for fraud upon the 

court. 

E. Nothing in this section shall constitute 

grounds to set aside an otherwise valid default 

judgment against a defendant who was not, at the 

time of service of process or entry of judgment, 

a servicemember for purposes of 50 U.S.C. app. § 

502. 

Code § 8.01-428 (emphases added). 
12

222 Va. 270, 278, 279 S.E.2d 400, 404 (1981). The General 

Assembly is well aware of the difference between the words 

"may" and "shall," and we conclude it has not used these terms 

synonymously within the language of Code § 8.01-428. See Roe 

v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006). 

Similarly, Rule 3:19(d)(1) states that "the court may" 

relieve a defendant of a default judgment during the 21-day 

period provided by Rule 1:1. We have held that "[w]hether to 

relieve a defendant of a default judgment under Rule 3:19(d)(1)

rests within the sound discretion of a trial court." Specialty 

Hosps. of Washington, LLC v. Rappahannock Goodwill Indus., 283 

Va. 348, 353, 722 S.E.2d 557, 559 (2012). Additionally, Rule 

3:19(b) states that "[p]rior to the entry of judgment, for good 

cause shown the court may grant leave to a defendant who is in 

default to file a late responsive pleading." Thus, we have 

observed that "the use of the word 'may,' as opposed to 

'shall,' in Rule 3:19(b) evidences that even after a defendant 

shows good cause, a trial court has discretion to grant or 

refuse the defendant's motion for leave to file late responsive 

pleadings." AME Fin. Corp. v. Kiritsis, 281 Va. 384, 392, 707 

S.E.2d 820, 824 (2011) (emphasis omitted). 

Likewise, in construing the plain language of Code § 8.01-

428(A) providing that the court "may" set aside a default 

judgment upon the grounds designated therein, we hold that the 
13

decision whether to grant Sauder's motion to set aside the 

default judgment rested within the sound discretion of the 

circuit court. 

B. The Circuit Court did not Abuse its Discretion 

Sauder argues that even if the decision of whether to 

grant her motion to set aside the default judgment was within 

the circuit court's discretion, the circuit court abused its 

discretion in refusing to set aside a judgment that was proved 

to be void ab initio. 

We have explained that the phrase "abuse of discretion" 

means that the circuit court "has a range of choice, and that 

its decision will not be disturbed as long as it stays within 

that range and is not influenced by any mistake of law." 

Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 

346, 352, 717 S.E.2d 134, 137 (2011) (internal quotation marks 

omitted); see also Hamad v. Hamad, 61 Va. App. 593, 607, 739 

S.E.2d 232, 239 (2013) ("This bell-shaped curve of 

reasonability governing our appellate review rests on the 

venerable belief that the judge closest to the contest is the 

judge best able to discern where the equities lie."). Thus, 

"'[o]nly when reasonable jurists could not differ can we say an 

abuse of discretion has occurred.'" Grattan v. Commonwealth, 

278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. 
14

Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 

(2005)). 

Pursuant to Code § 8.01-428(A), Sauder filed a motion 

seeking to set aside the default judgment entered in her favor 

upon the ground that the judgment was void for lack of personal 

service on Ferguson.5 "There are strong policy reasons favoring 

certainty of results in judicial proceedings. Accordingly, we 

 

5

 Subsection (A) of Code § 8.01-428 applies to "a motion 

filed as part of the cause in which the judgment order was 

entered." Basile v. American Filter Service, Inc., 231 Va. 34, 

37, 340 S.E.2d 800, 802 (1986). This is distinguished from an 

"independent action" seeking relief from judgment referenced in 

section D of the statute. Therefore, as the revisor's note 

states, "[a] court's inherent equity power to entertain an 

independent action to relieve a party from any judgment has 

been preserved" by Code § 8.01-428(D). Byrum v. Lowe & Gordon, 

Ltd., 225 Va. 362, 365-66, 302 S.E.2d 46, 48 (1983). A party 

seeking to set aside a default judgment in such an independent 

action must prove five elements: 

(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. 

Virginia Polytechnic Inst. & State Univ. v. Prosper Fin., Inc., 

284 Va. 474, 483, 732 S.E.2d 246, 251 (2012) (quoting Charles 

v. Precision Tune, Inc., 243 Va. 313, 317-18, 414 S.E.2d 831, 

833 (1992)). 
15

attach a high degree of finality to judgments, whether obtained 

by default or otherwise." McEwen Lumber Co. v. Lipscomb 

Brothers Lumber Co., 234 Va. 243, 247, 360 S.E.2d 845, 848 

(1987). Thus, "we have consistently construed Code § 8.01-428

and its predecessors, which create exceptions to the finality 

of judgments, narrowly." Id. Furthermore, since Code § 8.01-

428 is a codification of pre-existing equitable practice, the 

court's discretionary power is informed by equitable 

considerations. 

Although the circuit court observed that neither Sauder 

nor Rockingham Mutual disputed the fact that the complaint and 

summons were not served on Ferguson, it did not reach the issue 

of whether the judgment was void. Instead, it ruled that the 

facts did not justify the relief sought by Sauder. According 

to the circuit court, 

The record reveals at a minimum that 

[Sauder] failed to procure proper service. 

[Sauder] became aware of the service of process 

failure. [Sauder] did not correct the error. 

Nonetheless, [Sauder] asserted proper service and 

the default judgment she sought was entered. 

This alone is sufficient for the Court to deny 

the motion.6

 

6

 The circuit court clearly considered the absence of 

proper service here. Along with the other circumstances noted 

in the disposition, this demonstrates that, in the present 

case, it cannot be said that "a relevant factor that should 

have been given significant weight [was] not considered; . . . 

an irrelevant or improper factor [was] considered and given 
16

"The circuit court's factual findings based on the evidence 

adduced at the ore tenus hearing on the motion to set aside the 

default judgment will be reversed on appeal only if such 

findings are plainly wrong or without evidence to support 

them." Specialty Hosps., 283 Va. at 354, 722 S.E.2d at 559. 

Based on the circuit court's findings, which are supported 

by the record, we cannot say the circuit court abused its 

discretion. As the circuit court found, Sauder had knowledge 

of Ferguson's correct address when she attempted to serve the 

complaint and summons on him at a prior address.7

 When the 

questions regarding the validity of the service became 

apparent, Sauder used Ferguson's proper address for service of 

additional pleadings but did not at any time serve the 

complaint and summons at his current address. Furthermore, 

Sauder proceeded to seek and obtain a default judgment 

asserting valid service of the complaint and summons. 

 

significant weight; [or that] the court, in weighing those 

factors, commit[ed] a clear error of judgment." Landrum, 282 

Va. at 352, 717 S.E.2d at 137. 

7

 Ferguson provided his address during testimony at his 

deposition and at the declaratory judgment trial. Sauder was 

represented by counsel at both proceedings. Knowledge acquired 

by an attorney is imputed to the client. Yamada v. McLeod, 243 

Va. 426, 433, 416 S.E.2d 222, 226 (1992). 
17

Thereafter, she obtained a final judgment awarding the full 

amount of damages she claimed.8 As the circuit court observed, 

there may be situations in which one of the grounds enumerated 

in the statute justify relief from judgment on a moving 

plaintiff's behalf. In this case, however, Sauder is "the 

architect of [her] own misfortune." Landcraft Co. v. Kincaid, 

220 Va. 865, 874, 263 S.E.2d 419, 425 (1980) (decided under 

predecessor statute, Code § 8-348).9

 

8

 We have held that a circuit court erred in denying a 

motion to set aside a default judgment for lack of service when 

a defendant challenges the circuit court's exercise of personal 

jurisdiction and seeks to preclude enforcement of the judgment. 

See, e.g., Lifestar Response of Md., Inc. v. Vegosen, 267 Va. 

720, 724-25, 594 S.E.2d 589, 591-92 (2004); O'Connell v. Bean, 

263 Va. 176, 178-80, 556 S.E.2d 741, 742 (2002); Dennis v. 

Jones, 240 Va. 12, 19-20, 393 S.E.2d 390, 394 (1990). In this 

case, however, Sauder does not seek to set aside the judgment 

so as to preclude its enforcement against Ferguson; rather, she 

seeks to continue these proceedings so as to nonsuit her case 

and take a "second bite at the apple" against Ferguson. Yet, 

Ferguson has not made a formal appearance to raise a challenge 

to the judgment himself. Thus, in contrast to a defendant who 

challenges a judgment based on the absence of notice and an 

opportunity to be heard, Sauder was not deprived of an 

opportunity to fully and fairly present her claims. 

9

 We find no merit in Sauder's contention that Rockingham 

Mutual lacked standing to present evidence and argument in 

opposition to her motion to set aside the default judgment. 

Although Sauder argues that Rockingham Mutual is not her 

uninsured motorist carrier and has no stake in the matter, 

Rockingham Mutual was served with the complaint and summons as 

her purported uninsured motorist carrier, and the circuit court 

ordered that "Rockingham Mutual is liable for its contractual 

portion of Ms. Sauder's Uninsured Motorist Policy." 
18

III. CONCLUSION 

 For the foregoing reasons, we will affirm the judgment of 

the circuit court. 

Affirmed. 

JUSTICE POWELL, with whom JUSTICE MIMS joins, concurring. 

 Although I agree with the outcome of this case, I write 

separately because I disagree with the basis for the majority’s 

decision. Based on the circuit court's findings, which are 

supported by the evidence, I would conclude that Sauder is 

estopped from denying the validity of the judgment. 

 As the circuit court found, Sauder had knowledge of 

Ferguson's correct address when she attempted to serve the 

complaint and summons on him at a prior address.1

 When the 

questions regarding the validity of the service became 

apparent, Sauder used Ferguson's proper address for service of 

additional pleadings but did not at any time serve the 

complaint and summons at his current address. Furthermore, 

Sauder proceeded to seek and obtain a default judgment 

asserting valid service of the complaint and summons. See 

 

1

 Ferguson provided his address during testimony at his 

deposition and at the trial in the declaratory judgment action. 

Sauder was represented by counsel at both proceedings. 

Knowledge acquired by an attorney is imputed to the client. 

Yamada v. McLeod, 243 Va. 426, 433, 416 S.E.2d 222, 226 

(1992)(collecting cases). 
19

Eubank & Caldwell, Inc. v. Fuller, 156 Va. 635, 638, 158 S.E. 

884, 885 (1931) (a party with knowledge of the facts affecting 

the validity of a judgment who “accepts and treats [the 

judgment] as valid and binding in all respects . . . will not 

be permitted later to show its invalidity[,] for he is 

estopped”); Smith v. Litton, 167 Va. 263, 266, 188 S.E. 214, 

215 (1936) (“A man cannot say at one time that the transaction 

is valid and thereby obtain some advantage to which he could 

only be entitled on the footing that it is valid, and at 

another time say it is void for the purpose of securing some 

further advantage.”) (citation and internal quotation marks 

omitted); see also Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268 

Va. 377, 381, 601 S.E.2d 648, 650 (2004) (judicial estoppel 

prohibits a party “from taking inconsistent positions within a 

single action”). 

 Under these facts, therefore, Sauder cannot now deny the 

validity of the judgment and is judicially estopped from 

seeking to set it aside.2 For these reasons, I would affirm 

the judgment of the circuit court. 

 

2

 I find no merit in Sauder’s contention that Rockingham 

Mutual lacked standing to present evidence and argument in 

opposition to her motion to set aside the default judgment. 

Although Sauder argues that Rockingham Mutual is not her 

uninsured motorist carrier and has no stake in the matter, 

Rockingham Mutual was served with the complaint and summons as 

her purported uninsured motorist carrier, and the circuit court 
20

 

ordered that “Rockingham Mutual is liable for its contractual 

portion of Ms. Sauder's Uninsured Motorist Policy.”