Is this Judgment Void, or Merely Voidable?
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