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Thursday, May 2, 2013

Is this Judgment Void, or Merely Voidable?
This week the Third District Court of Appeal delivered its latest lesson on relief from judgments under Florida Rule of Civil Procedure 1.540.

In Kalb v. Sail Condo. Ass'n., Inc., No. 3D12-1334 (Fla. 3d DCA May 1, 2013), the Third highlighted the very important distinction between judgments that are void under 1.540(b)(4), and those that are merely voidable under other grounds set forth in the rule .  This distinction is crucial because a motion directed at a void judgment may be brought at any time under Rule 1.540; whereas, a motion to vacate a voidable judgment must within one year of rendition.

ThyssenKrupp (the elevator company) sued Sail Condo Ass'n for breach of contract, and served an employee of the Sail Condo's agent with process.  But Sail Condo failed to file any responsive pleadings and a default judgment was entered in ThyssenKrupp's favor.

Three months after this default, Sail Condo filed an affidavit of one of its employees, who swore that the complaint had been served on another employee, but that employee failed to follow office protocol and never alerted Sail Condo's counsel to the lawsuit.

And perhaps Sail Condo's operational oopsy-daisy could have provided a basis to vacate its default judgment under 1.540(b)(1) (mistake inadvertence, surprise, or excusable neglect) - but only if Sail Condo had brought the motion within one year, and as soon as it learned of the mistake that led to default. Unfortunately, Sail Condo inexplicably waited another 18 months after first filing its mea culpa affidavit to file its motion to vacate.

As the Third explained, failing to respond to a lawsuit because you lost the papers will not render a default judgment void:
On this record, the motion to vacate should not have been granted. The Association’s argument that the judgment was void is incorrect. Service on the registered agent’s employee was proper under section 48.081(3)(a), Florida Statutes (2010). Chapter 2004-273, section 2, Laws of Florida, amended section 48.081(3)(a) to add that “service of process shall be permitted on . . . any employee of the registered agent.” Here, under the plain language of the statute, service on the employee was valid, and the resulting judgment was not void. See Seymour v. Panchita Inv., Inc., 28 So. 3d 194 (Fla. 3d DCA 2010).
So because the judgment was merely voidable, Sail Condo was out at first:
This conclusion renders the motion to vacate irremediably late. While a motion to vacate an order based on a void judgment can be filed at any time, motions to vacate on other grounds must be brought within one year of rendition. Fla. R. Civ. P. 1.540; Craven v. J.M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). Trial courts do not have jurisdiction to entertain a Rule 1.540(b) motion filed more than one year after rendition of the judgment where there is no basis to exempt the motion from that limitations period. Pilz v. Pilz, 395 So. 2d 591 (Fla. 2d DCA 1981). Here, the one-year limitations period had run.
Moral of the story:  know the difference between void and voidable judgments when moving for relief from under Rule 1.540.  "A void judgment is one entered without jurisdiction of the parties or subject matter or there is a failure of essential notice."  Trawick, Fla. Prac. & Proc. § 26:8 (2012 ed.).

A voidable judgment is one that can be vacated based on any other grounds under 1.540.

Assuming you are not already past the one year window, file your motions against voidable judgments within a year of rendition. And even when you think you have a void judgment entered against you, file within a year unless you have an iron-clad argument for why the judgment is, in fact, void.

(And file your motion to vacate WITH your affidavits in support!!)







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2 Comments:

At January 27, 2014 at 2:01 AM , Blogger Unknown said...

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At December 14, 2015 at 7:01 PM , Blogger Unknown said...

This is great stuff to know...void judgment vs. voidable judgment..Thanks

 

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