COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Fulton and White

NATHAN DAVIS, SOMETIMES KNOWN AS

 NATHAN ANTONIO DAVIS

MEMORANDUM OPINION*

v. Record No. 0972-22-4 PER CURIAM

 JANUARY 10, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Daniel S. Fiore, II, Judge

(Nathan Davis, on briefs), pro se.

(Jason S. Miyares, Attorney General; Craig W. Stallard, Senior 

Assistant Attorney General, on brief), for appellee.

In this appeal, we consider whether the trial court erred in dismissing Nathan Davis’s 

independent action to set aside judgment by default (“independent action”) for failure to state a 

claim. After examining the briefs and record in this case, the panel unanimously holds that oral 

argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); 

Rule 5A:27(a). We affirm the trial court’s judgment.

BACKGROUND

By order entered September 22, 2021, the Arlington County Circuit Court found as follows:

[T]hat on October 17, 2013, [Davis] filed, as a civil action, a motion 

- as a new pleading - praying for an independent action to set aside a 

default judgment; that his civil action was assigned case number 

CL13-2305-00; that the default judgment he referenced was actually 

criminal convictions for possession with intent to distribute cocaine, 

possession of a firearm while in possession of cocaine, possession of

a firearm by a convicted felon, and child endangerment; that [Davis]

never caused his motion to be served on the [Attorney General]; that 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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[Davis] let his matter sit dormant for close to five (5) years; that after 

more than three years passed with no order entered or proceeding 

scheduled in CL13-2305-00, the court administratively discontinued 

the matter pursuant to Va. Code § 8.01-335(B) on November 26, 

2018, almost five (5) years after it was filed; that on August 26, 2019 

[Davis] filed a petition in forma peuperis [sic] and motion to reopen 

CL13-2305-00, which petition in forma peuperis [sic] was granted 

by another judge of this court on September 4, 2019 and this action 

CL13-2305-01 was opened; that the Clerk of Court, without a 

request by [Davis], directed on October 9, 2019 that the motion to 

reopen be served on the Attorney General for the Commonwealth of 

Virginia; [and] that on October 21, 2019, service was effectively 

made on the Attorney General.

1

Davis’s independent action asserted that a police officer testified at trial that the car Davis 

had been driving was stopped because the officer suspected it was stolen. Attached to Davis’s 

motion was a document purported to be a list of cars stolen from the Shirlington and Fairlington 

areas of Arlington County during the relevant time, which showed that the type of car he was 

driving was not listed. Davis thus concluded that the police officer had lied, that the 

Commonwealth’s Attorney was aware of the lie, and therefore moved the court to vacate his 

convictions in accordance with Code § 8.01-428. Upon its review of the pleadings and exhibits, the 

trial court held that Davis failed to state a claim and dismissed his independent action. Davis noted 

this appeal.

ANALYSIS

Davis asserts that the trial court erred in dismissing his independent action, for failure to 

state a claim, and argues that his pleadings and exhibits sufficiently proved that the Commonwealth 

committed fraud upon the court in obtaining his criminal convictions. We disagree.

1 The supporting pleadings for these findings of fact are not contained within the record 

sent to us on appeal; however, we adopt these facts because a court speaks through its written 

orders. See Hernandez v. Commonwealth, 281 Va. 222, 226 (2011). Also, Davis’s independent 

action is contained within the record because he refiled it on September 24, 2020.
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We begin by noting that this motion to dismiss is akin to a demurrer for failure to state a 

claim upon which relief can be granted. “In any suit in equity or action at law, the contention 

that a pleading does not state a cause of action or that such pleading fails to state facts upon 

which the relief demanded can be granted may be made by demurrer.” Code § 8.01-273. “A 

demurrer tests the legal sufficiency of the facts properly alleged in the challenged pleading and 

the inferences fairly drawn from those facts, all of which are accepted as true. A demurrer does 

not admit, however, the correctness of the pleader’s legal conclusions.” Jared & Donna 

Murayama 1997 Tr. v. NISC Holdings, LLC, 284 Va. 234, 245 (2012). “Because the circuit 

court’s ruling on a demurrer presents an issue of law, we review the decision de novo.” Id. 

Rule 1:1 makes clear that “[a]ll final judgments, orders, and decrees, irrespective of terms of 

court, remain under the control of the trial court . . . for twenty-one days after the date of entry, and 

no longer.” However, Code § 8.01-428 provides limited exceptions to Rule 1:1, and states in 

relevant part:

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.

Given that Code § 8.01-428 “does not create new rights or remedies,” we construe it

“narrowly to advance the principle of finality of judgments.” Virginia Polytechnic Inst. & State 

Univ. v. Prosper Fin., Inc., 284 Va. 474, 483 (2012). 

The party seeking to set aside a default judgment in an independent 

action brought pursuant to . . . Code § 8.01‐428(D) must prove 

each of the following 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 
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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.

Id. (quoting Charles v. Precision Tune, Inc., 243 Va. 313, 317-18 (1992)). 

Davis’s written independent action asserted that, at trial, the Commonwealth conspired with 

its witnesses to suborn perjured testimony and, thus, prevented the court from performing its judicial 

duties. Davis now assigns error to the trial court’s finding that his pleadings failed to prove the 

Commonwealth obtained his criminal convictions by fraud.

An allegation of fraud must be sufficiently pled. “[W]here fraud is relied on, the 

[pleading] must show specifically in what the fraud consists, so that the defendant may have the 

opportunity of shaping his defence [sic] accordingly, and since [fraud] must be clearly proved it 

must be distinctly stated.” Mortarino v. Consultant Eng’g Servs., 251 Va. 289, 295 (1996). 

(second and fourth alterations in original) (quoting Ciarochi v. Ciarochi, 194 Va. 313, 315 

(1952)). The party alleging fraud “must prove by clear and convincing evidence: (1) a false 

representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to 

mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” State 

Farm Mut. Auto. Ins. v. Remley, 270 Va. 209, 218 (2005) (quoting Prospect Dev. Co. v. 

Bershader, 258 Va. 75, 85 (1999)). “On review, we must affirm the trial court’s judgment unless 

it is plainly wrong or without evidence to support it.” Jennings v. Jennings, 26 Va. App. 530, 

534 (1998). 

Furthermore, two types of fraud are relevant to our analysis: extrinsic and intrinsic fraud. 

“Extrinsic fraud is fraud which occurs outside the judicial process and ‘consists of conduct which 

prevents a fair submission of the controversy to the court.’” F.E. v. G.F.M., 35 Va. App. 648, 

659-60 (2001) (en banc) (quoting Peet v. Peet, 16 Va. App. 323, 327 (1993)). Under such 

circumstances, “[a] collateral challenge to a judgment . . . is allowed because such fraud perverts 

the judicial processes and prevents the court or non-defrauding party from discovering the fraud 
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through the regular adversarial process.” Peet, 16 Va. App. at 327. “Extrinsic fraud, therefore, 

is fraud that . . . ‘deprives a person of the opportunity to be heard.’” G.F.M., 35 Va. App. at 660 

(quoting Hagy v. Pruitt, 529 S.E.2d 714, 717 (S.C. 2000)). A judgment procured by extrinsic 

fraud “is void and subject to attack, direct or collateral, at any time.” Remley, 270 Va. at 218 

(quoting Jones v. Willard, 224 Va. 602, 607 (1983)). 

Intrinsic fraud, however, includes “perjury, use of forged documents, or other means of 

obscuring facts presented before the court and whose truth or falsity as to the issues being 

litigated are passed upon by the trier of fact.” Peet, 16 Va. App. at 326-27. “Although a 

judgment obtained by extrinsic fraud is void and, therefore, subject to direct or collateral attack, 

a judgment obtained by intrinsic fraud is merely voidable and can be challenged only by a direct 

appeal or by a direct attack in an independent proceeding.” Id. at 326. A judgment procured by 

intrinsic fraud, then, is “voidable by direct attack at any time before the judgment becomes final.” 

Jones, 224 Va. at 607 (emphasis added). “A collateral attack on a judgment procured by 

intrinsic fraud has been deemed not warranted because the parties have the opportunity at trial 

through cross-examination and impeachment to ferret out and expose false information presented 

to the trier of fact.” Peet, 16 Va. App. at 327. A “party must act by direct attack or appeal . . .

and cannot wait to [assault] the judgment . . . when[] it is enforced.” Id. “It is settled beyond 

controversy that a [judgment] will not be vacated merely because it was obtained by forged 

documents or perjured testimony.” McClung v. Folks, 126 Va. 259, 270 (1919).

The facts set forth in Davis’s pleading do not sufficiently show that his criminal convictions 

were procured by extrinsic fraud. Rather Davis’s pleadings, at best, allege intrinsic fraud. Davis’s 

convictions arose out of an incident with the police that occurred on June 14, 2006, in which the car 

he was driving was the subject of a traffic stop that led to the seizure of drugs from Davis’s person

and weapons from the car. Davis later filed a motion to suppress, and the court conducted an 
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evidentiary hearing on that motion. At the suppression hearing, Officer Matt Owens testified that he 

was on the lookout for “people driving stolen cars,” when he observed a “suspicious vehicle” 

matching the description of one of the vehicles that was stolen. He testified to the same facts at 

trial. Although Officer Owens did not specify whether the information regarding a stolen vehicle 

came from this list in his testimony, Davis’s counsel had—and took—every opportunity to 

cross-examine him about his patrol, the reasons for stopping Davis, and the subsequent investigation

and arrest. 

Davis claims that, because the list of stolen vehicles from the Shirlington and Fairlington 

areas of Arlington County does not include a vehicle matching the description of the car he was 

driving, Officer Owens, with the Commonwealth’s knowledge, lied about his reason for the stop. 

Davis concludes that the Commonwealth’s failure to provide this list before the suppression hearing 

fraudulently led to the court’s failure to suppress the evidence and ultimately led to his convictions. 

Davis’s pleadings fail to show that Officer Owens knowingly and intentionally made a false 

representation of a material fact, relied upon by either Davis or the court, that resulted unlawfully in 

his criminal convictions. The evidence reflects the fact that Davis was never denied a trial or an 

opportunity to be heard. On the contrary, it shows that, even if Officer Owens had perjured himself, 

Davis was afforded every opportunity to ferret that out through cross-examination. Moreover, 

Officer Owens’s summary states that the vehicle Davis was driving was, in fact, stolen out of 

Washington, D.C. It follows that the trial court did not err in dismissing his independent action for 

failure to state a claim.
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CONCLUSION

The trial court correctly determined that the facts alleged in Davis’s pleadings failed to state 

a claim that entitled him to any relief. Davis failed to establish that the Commonwealth committed 

extrinsic fraud on the court and, as a result, we affirm trial court’s judgment.

Affirmed.