EVA A. KENNEDY, APPELLANT,
v.
BARRY C. RICHMOND AND THOMAS J. WAREHAM, D/B/A B & C REMODELERS, APPELLEES
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Eva Kennedy appeals the vacation of a default judgment against defendant Thomas Wareham in a breach of contract action. The court affirmed the trial court's order vacating the judgment because Wareham was never properly served with process, rendering the judgment void.
The court held that the judgment was void due to lack of proper service of process on Wareham. Service on his business partner Richmond was ineffective as to Wareham personally, and the judgment must be vacated. The timing of the motion to vacate was immaterial because a void judgment can be set aside at any time.
[1] A judgment entered without service of process is void and may be vacated at any time.
[2] Service of process on one partner is insufficient to establish personal jurisdiction over another partner who was not served.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“although service of process on one partner is sufficient to give a court jurisdiction over the partnership and to enable it to render a judgment binding the partners served and the partnership property, a judgment after service on fewer than all the partners will not be given the effect of a personal judgment against partners not actually served”
Establishes that service on one business partner does not constitute valid personal service on the other partner
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Join FLexlaw to unlock all legal intelligenceKennedy filed a breach of contract action against Barry Richmond and Thomas Wareham, doing business as B & C Remodelers. An answer was filed by an att…
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PER CURIAM.
Eva A. Kennedy, plaintiff below, appeals the trial court's order vacating a final judgment against the defendant Thomas Ware-ham. We affirm.
Appellant originally filed an action for breach of contract against Barry C. Richmond and Thomas J. Wareham, d/b/a B & C Remodelers. An answer was filed, purportedly on behalf of both defendants, but it was later determined that the attorney who prepared the answer had never been retained by Wareham.
The case was set for trial and was heard in the absence of both defendants, after which final judgment was entered against them. Thereafter, Wareham filed a motion to vacate the judgment, contending that he had not received notice of the lawsuit until after the final judgment had been rendered.
The record contains no indication that Wareham was ever personally served with a copy of a summons or the complaint. A return of service document indicates that a copy of the summons and complaint was purportedly served on Wareham at 920 N. Federal Highway, Pompano Beach, Florida. A handwritten notation on the return of service states, “Served Barry Richmond authorized to accept papers.” However, there was no showing by what authority Richmond was authorized to accept service for Wareham, and Wareham testified at the hearing on the motion to vacate the judgment that he had never had any connection with the office facility located at the indicated address.
Even if Richmond and Wareham were business partners, any service on Richmond was ineffective as to Wareham personally, for although service of process on one partner is sufficient to give a court jurisdiction over the partnership and to enable it to render a judgment binding the partners served and the partnership property, a judgment after service on fewer than all the partners will not be given the effect of a personal judgment against partners not actually served. See Florida Brewing Co. v. Sendoya, 73 Fla. 660, 74 So. 799 (1917); Fidelity and Casualty Co. of New York v. Homan, 116 So. 2d 444 (Fla. 2d DCA 1959).
Appellant contends that appellee failed to establish excusable neglect, a meritorious defense and due diligence in moving to set aside the judgment as required by rule 1.540(b)(1), Florida Rules of Civil Procedure. Review of appellee's motion to vacate the judgment, however, indicates that it was made not on the grounds of excusable neglect, but pursuant to rule 1.540(b)(4), on the grounds that the judgment was void for lack of notice of the lawsuit. A judgment entered without service of process is void and will be set aside and stricken from the record on motion at any time. Falkner v. Amerifirst Savings and Loan, 489 So. 2d 758 (Fla. 3d DCA 1986). That appellee’s motion to vacate was brought almost a year after the final judgment was rendered, therefore, is of no consequence.
We conclude that there was sufficient evidence before the trial court for it to conclude that this case had proceeded to trial without notice to appellee, and that therefore the final judgment as to him individually should be vacated. Appellant has not shown that the trial court abused its discretion.
AFFIRMED.
HERSEY, C.J., and DELL and STONE, JJ., concur.
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Citator
Cited By (22 total)
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Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)…Inc. v. Lasky, 529 So. 2d 317, 318 (Fla. 2d DCA 1988). Rule 1.540(b)(4) provides relief from void judgments. Relief from a void judgment may be granted at any time. See Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988); Kennedy v. Richmond, 512 So. 2d 1129, 1130 (Fla. 4th DCA 1987); Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758, 759 (Fla. 3d DCA 1986). A violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void. See Curbelo v. Ullman, 571 S…
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Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)…which he had no notice, a fact the appellees concede. A judgment may be attacked at any time when the face of the record reveals that no jurisdiction was obtained over the defendant because service of process was not perfected. Kennedy v. Richmond, 512 So. 2d 1129 (Fla. 4th DCA 1987). When there is a lack of jurisdiction over the defendant, the judgment is absolutely null and void on its face. See T.J.K. v. N.B., 237 So. 2d 592, 595 (Fla. 4th DCA 1970). Here, the record re-fleets that appellees’ three attempt…
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Great Am. Ins. Co. v. Bevis, 652 So. 2d 382 (Fla. 2d DCA 1995)…properly served by substituted service. Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978). A judgment entered without valid service is void for lack of personal jurisdiction and may be collaterally attacked at any time. Kennedy v. Richmond, 512 So. 2d 1129 (Fla. 4th DCA 1987); Falkner v. Amerifirst Federal Savings and Loan Association, 489 So. 2d 758 (Fla. 3d DCA 1986); Tucker v. Dianne Electric, Inc., 389 So. 2d 683 (Fla. 5th DCA 1980). The appropriate procedure for attacking a void judgment is by a…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Seaboard Air Line Railway v. Callan, 73 Fla. 688 (Fla. 1917)
- Fid. & Cas. Co. OF NEW York v. Forest F. Homan and Norman B. Fisher, 116 So. 2d 444 (Fla. 2d DCA 1959)
- Fla. Brewing Co. v. Sendoya, 73 Fla. 660 (Fla. 1917)