Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims and
Powell, JJ., and Lacy, S.J.

VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY

v.   Record No. 111912                OPINION BY SENIOR JUSTICE
                                          ELIZABETH B. LACY
PROSPER FINANCIAL, INC.                   September 14, 2012

              FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                        Robert M. D. Turk, Judge

      In this appeal we consider whether the trial court erred in

setting aside a default judgment in an action filed pursuant to

Code § 8.01-428(D).

                              Background

      In 2008, Virginia Polytechnic Institute and State

University (“VPI”) and Prosper Financial, Inc. (“Prosper”)

entered into a research contract.    The contract between the

parties stated, on the first page, that Prosper had offices at

4801 Alhambra Circle, Coral Gables, Florida 33146.    Another

provision of the contract provided that “[a]ny notices required

to be given or which shall be given” to Prosper under the

contract should be addressed to P.O. Box 331916, Miami, Florida

33233-1916.

      In 2010, VPI filed a complaint in the Circuit Court of

Montgomery County, Virginia claiming that Prosper breached the

2008 contract.    Because Prosper was a Florida corporation, VPI

sought to effect service of process through the company’s
statutory agent, the Secretary of the Commonwealth.    See Code

§§ 8.01-301(3) and -329(A).   In its affidavit for service of

process on the Secretary of the Commonwealth, VPI stated that

Prosper was a foreign corporation and listed the post office box

address contained in the notice provision of the contract as

Prosper’s last known address.   The Secretary of the Commonwealth

filed a Certificate of Compliance certifying that the complaint

and summons had been sent by certified mail, return receipt

requested, to Prosper at the post office box address.    See Code

§ 8.01-329(C).    Prosper did not file responsive pleadings and,

on VPI’s motion, the trial court entered a default judgment for

$783,408.72 against Prosper on June 8, 2010.

     In 2011, Prosper filed a motion pursuant to subsection (A)

of Code § 8.01-428 asking the trial court to vacate the default

judgment order.   Prosper alleged that the default judgment was

void or voidable for failure to comply with the requirements for

service of process established by Code § 8.01-329.    At the same

time, Prosper filed an independent action pursuant to subsection

(D) of Code § 8.01-428 raising the same allegations and asking

for the same relief.   The trial court held a single hearing to

consider both the motion and the independent action.

     At the hearing, Prosper argued that VPI’s affidavit to the

Secretary of the Commonwealth for substituted service was

defective because it identified as Prosper’s last known address

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only one of the two addresses contained in the contract.

According to Prosper, identification of both addresses was

required under Code § 8.01-329(B).    Therefore, according to

Prosper, the service of process was void ab initio and the trial

court did not have jurisdiction over Prosper when it entered the

default judgment order.   Prosper also asserted that the failure

to list both addresses constituted fraud or fraud on the trial

court.

     VPI responded that it met the requirements of Code § 8.01-

329 for service of process on Prosper and when the Certificate

of Compliance was filed, service on Prosper was complete and

conclusive.   VPI argued that the address it specified in its

affidavit was the address listed in the notice provision of the

contract between the parties and was the address the parties had

used for correspondence and billing purposes during the contract

period.   Therefore, VPI maintained that it met the requirements

of Code § 8.01-329(B) and was not required to list both

addresses.    VPI also argued that it did not commit fraud or

fraud upon the trial court by listing only the single address in

its affidavit.

     Following the argument of counsel, the trial court

determined that the order of default judgment should be set

aside stating that “due diligence in this instance, if there’s

two addresses, [service of process] should have been attempted

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at both addresses.”   At a subsequent hearing to clarify the

basis for the ruling, the trial court stated that VPI “owed the

duty, based upon the size of this suit and the nature of the

suit, to try to serve both places” but that there was not

“necessarily any type of fraud . . . .”      The trial court stated

that “people deserve their day in court” and that “it’s

fundamental fairness for everybody that we overturn that default

judgment, and . . . proceed on where this thing really ought to

go.”   The trial court expressly declined to determine if the

order of default judgment should be set aside as void stating

“[w]hether it’s void or not, I don’t know.”     The trial court

entered an order in the independent action setting aside the

order of default judgment for the reasons stated at the

hearings.   The trial court also entered an order granting

Prosper’s motion to vacate the default judgment.     The trial

court did not differentiate the grounds on which it vacated the

order of default judgment based on the nature of the proceeding

(i.e., the motion to vacate or the independent action to

vacate).    VPI filed this appeal from the judgment entered in the

independent action.

                                Discussion

       The issues raised in this appeal can be summarized as

follows: (1) whether the trial court erred in holding that

substituted service on the Secretary of the Commonwealth under

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Code § 8.01-329 was invalid because subsection (B) of that

statute required VPI to identify both Prospect’s physical and

post office box addresses as “the last known address of the

person to be served;” and (2) whether the trial court’s order

was deficient because it failed to articulate certain findings

required for vacating a default judgment in an action filed

pursuant to Code § 8.01-428(D).

                 1. Compliance with Code § 8.01-329(B)

     We have repeatedly held that any material failure to comply

with the terms of the statute authorizing constructive service

invalidates the service and that any default judgment based upon

such service is void.   O'Connell v. Bean, 263 Va. 176, 179, 556

S.E.2d 741, 742 (2002) (failure to check box in affidavit form to

incorporate the defendant’s last known address was a material

deviation from requirements of Code § 8.01-329 and thus service

was invalid); see also Khatchi v. Landmark Restaurant Assocs.,

237 Va. 139, 142, 375 S.E.2d 743, 745 (1989) (affidavit

defective and service invalid because plaintiff failed to

satisfy requirements of Code § 8.01-329(B) and indicate that

either the defendant was non-resident or foreign corporation or

after exercising due diligence, party to be served could not be

located).   But see Basile v. American Filter Serv., Inc., 231

Va. 34, 38, 340 S.E.2d 800, 802 (1986)(failure to include

corporate defendant's zip code on affidavit did not invalidate

                                  5
service because omission of zip code could not result in

delivery to any location other than corporation's correct

address).   Consequently, the issues which we must determine are

what the statute requires and whether VPI fulfilled those

requirements.

     Code § 8.01-329(B) provides that a party seeking to secure

service of process on another party through serving the

Secretary of the Commonwealth shall execute an affidavit stating

either:

    (i) that the person to be served is a nonresident or
    (ii) that, after exercising due diligence, the party
    seeking service has been unable to locate the person
    to be served. In either case, such affidavit shall
    set forth the last known address of the person to be
    served.

(Emphasis added.)

     VPI argues that, under the plain language of the

statute, a party complies with the statute by furnishing

a single address for service of process, even if a

plaintiff knows of more than one address for the person

to be served.   Prosper contends that under principles of

statutory construction and constitutional due process,

the statute’s use of the word “the” rather than “a” when

referring to the last known address means that when more

than one address is known, all known addresses of the

party to be served must be provided.


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     We have not previously been asked to construe this

provision in circumstances in which more than one current

address for the person to be served is known to the

plaintiff.    “In construing statutes, courts are charged

with ascertaining and giving effect to the intent of the

legislature.   That intention is initially found in the

words of the statute itself . . . .” Crown Cent.

Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345,

346 (1997) (citation omitted).    Accordingly, “[w]hen the

language of a statute is unambiguous, we are bound by the

plain meaning of that language.”       Conyers v. Martial Arts

World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174,

178 (2007).    Where the legislature’s intent is not

evident from the language it enacted because the words it

used are amenable to more than one interpretation, “the

plain, obvious, and rational meaning of a statute is to

be preferred over any curious, narrow, or strained

construction.”    Meeks v. Commonwealth, 274 Va. 798, 802,

651 S.E.2d 637, 639 (2007) (quoting Commonwealth v.

Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998))

(internal alteration omitted).

     We reject Prosper’s construction of Code § 8.01-

329(B).   The use of the definite article “the” coupled

with the singular form of the noun “address” reflects a

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legislative intent to serve process at a single address,

not multiple addresses. ∗

     Prosper argues further, however, that application of

the statute to allow a plaintiff to “pick and choose, at

its sole discretion” among known addresses of the person

to be served “offends traditional notions of fair play and

substantial justice” and consequently is unconstitutional

under International Shoe Co. v. Washington, 326 U.S. 310

(1945).   We disagree.

     In the context of substituted service, the due

process principles of fair play and substantial justice

concern the likelihood that the method chosen will inform

the party to be served of the pending litigation.

          An elementary and fundamental requirement of
     due process in any proceeding which is to be
     accorded finality is notice reasonably calculated,
     under all the circumstances, to apprise interested
     parties of the pendency of the action and afford
     them an opportunity to present their objections
     . . . . [I]f with due regard for the practicalities
     and peculiarities of the case these conditions are
     reasonably met, the constitutional requirements are
     satisfied.
                           . . . .



     ∗
      Similarly, contrary to the trial court’s interpretation,
the statute does not reference the exercise of due diligence as
a method of selecting the last known address of the party to be
served. The statutory requirement of due diligence is imposed
only when the person to be served is a resident of the
Commonwealth whose location is unknown. Code § 8.01-329(B)(ii).


                                8
    The reasonableness and hence the constitutional
    validity of any chosen method may be defended on the
    ground that it is in itself reasonably certain to
    inform those affected . . . or . . . that the form
    chosen is not substantially less likely to bring home
    notice than other of the feasible and customary
    substitutes.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-

15 (1950) (citations omitted); see also Virginia Lime Co. v.

Craigsville Distrib. Co., 670 F.2d 1366, 1368 (4th Cir. 1982).

     The record in this case demonstrates that Prosper received

mail at the post office box address, that VPI mailed

correspondence by certified mail, return receipt requested, to

Prosper at the post office box address, that both the president

and general manager of Prosper received or signed the

certification of mailing accompanying correspondence from VPI,

and that Prosper used both the post office box address and the

physical address during its contractual relationship with VPI.

This evidence demonstrates that the address VPI identified on

the affidavit required by Code § 8.01-329(B) was reasonably

calculated to provide notice to Prosper of the pending

litigation and was not less likely to provide notice than other

feasible or customary substitutes.

     The use of the post office box address in this case,

although one of two known to VPI, was not unconstitutional and

satisfied “the last known address” requirement of Code § 8.01-

329(B).   Therefore the trial court’s determination that both

                                 9
addresses were required to comply with Code § 8.01-329(B) was

error and cannot be sustained as a basis for setting aside the

default judgment order.   Because the relevant requirements of

Code § 8.01-329(B) were met in this case, service was complete

and actual notice of the proceeding was not required.     Basile,

231 Va. at 38, 340 S.E.2d at 802.

                  2. Application of Code § 8.01-428(D)

     VPI also argues that the trial court’s judgment vacating

the default decree in the action filed pursuant to Code § 8.01-

428(D) should be reversed because the court did not “articulate

a sufficient finding of cause” to support the judgment.    We

agree.

     Code § 8.01-428(D) provides:

     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 set aside a judgment or decree for fraud
     upon the court.

This provision does not create new rights or remedies and we

construe it narrowly to advance the principle of finality of

judgments.   Charles v. Precision Tune, Inc., 243 Va. 313, 317,

414 S.E.2d 831, 833 (1992).   The party seeking to set aside a

default judgment in an independent action brought pursuant to

what is now Code § 8.01-428(D) must prove each of the following

five elements:



                                10
     (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.

Id. at 317-18, 414 S.E.2d at 833.   We have stated that when

setting aside the default judgment in an independent action, the

trial court must articulate “its consideration of and findings

with regard to all the necessary elements.”   Ryland v. Manor

Care, Inc., 266 Va. 503, 510, 587 S.E.2d 515, 519 (2003).      See

also Specialty Hosps. of Washington, LLC v. Rappahannock

Goodwill Industries, Inc., 283 Va. 348, 357, 722 S.E.2d 557, 561

(2012) (articulation of elements required to set aside default

judgment in action brought pursuant to Code § 8.01-428(D)).

     The trial court in this case did not articulate its

consideration of or findings with regard to such elements as the

absence of an adequate remedy at law, whether Prosper had a good

defense to the underlying cause of action, and whether Prosper

was free of fault or negligence in the failure to receive the

notice.

     Prosper argued that VPI’s failure to include both addresses

when it was aware of both addresses constituted fraud or fraud

on the court, however, the trial court specifically stated “I

don’t know that it was necessarily any type of fraud.”   The


                               11
trial court did not address accident or mistake.   Accordingly,

the trial court erred in setting aside the order of default

judgment in the independent action brought pursuant to Code

§ 8.01-428(D) without identifying its findings on the necessary

elements of the action.

                              Conclusion

     For the reasons stated, we will reverse the judgment of the

trial court vacating the order of default judgment in the

independent action brought pursuant to Code § 8.01-428(D) and

reinstate the final judgment against Prosper.

                                    Reversed and final judgment.




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