RICKY SWEET
v.
ALICIA MONIQUE TUCKER
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The appellate court affirmed a lower court's denial of a motion to vacate an injunction. The appellant argued the original injunction was void due to improper service of process as a minor, but the court found the defects were waivable and the injunction was superseded, rendering the challenge moot.
No, the circuit court was not obligated to grant the motion. Even if service was defective, the injunction was voidable, not void, and Sweet waived any defects by appearing and participating in proceedings. Furthermore, the challenge was moot as the original injunction had been superseded.
[1] A defect in service of process is waived when a defendant personally appears at the hearing and files subsequent motions without raising the service defect or jurisdictio…
[2] A challenge to a voidable judgment based on defective service of process must be brought within one year and with reasonable diligence, and failure to do so bars relief.
Previewing 2 of 3 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“First, even if the original service of process upon Sweet was defective, he does not deny he had actual notice of the proceedings against him. Thus, the injunction was voidable, not void.”
Establishes that defective service does not automatically void an injunction if the party had notice.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRicky Sweet, a minor at the time, was served with an injunction for repeat violence. He later moved to vacate this injunction, arguing the service of …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Ricky Sweet appeals the circuit court’s denial of his motion to vacate an injunction against repeat violence entered against him on April 30, 1998. See § 784.046, Fla. Stat. (1997). Sweet argues that the circuit court was obligated to grant his motion because the original injunction was void for lack of jurisdiction over his person. Although Sweet received notice of the petition and appeared at the final hearing, Sweet argues that he was only seventeen years old at the time and the service of process upon him did not comport with section 48.041, Florida Statutes (1997). We affirm the circuit court’s order for the reasons which follow. First, even if the original service of process upon Sweet was defective, he does not deny he had actual notice of the proceedings
against him.
Thus, the injunction was voidable, not void. See Savage v. Rowell Distrib. Corp., 95 So. 2d 415, 418 (Fla. 1957) (holding that failure to appoint a guardian ad litem to represent minor renders judgment voidable, not void); Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013) (holding that defective service of process renders a judgment voidable).
The record contains no challenge by Sweet to the 1998 injunction by motion or appeal until 2017, when he filed the motion to vacate. Unlike the minor defendant in Savage, Sweet did not exercise “reasonable diligence in moving to set aside” the decree. 95 So. 2d at 418. See also Kathleen G. Kozinski, 126 So. 3d at 1268 (requiring that a challenge to a judgment based on defective service of process be filed within one year of the voidable judgment).
Second, Sweet waived any defects in the service of process by personally appearing at the hearing held in 1998 and by filing three motions with the court shortly after the hearing. None of his motions raised his age to challenge the sufficiency of service of process or the court’s jurisdiction over him. “Florida law is well established that service of process, and any defect in service of process, can be waived by the general appearance of a party before the trial court.” Laura M. Watson, P.A. v. Stewart Tilghman Fox & Bianchi, P.A., 162 So. 3d 102, 106 (Fla. 4th DCA 2014). See also Caldwell v. Caldwell, 921 So. 2d 759 (Fla. 1st DCA 2006).
Third, the record demonstrates that Sweet’s challenge to the injunction entered in 1998 is moot because that injunction was superseded in 2002 and is no longer in effect. Appellee filed an amended petition alleging new acts by Sweet. Thereafter, an amended final judgment of injunction was entered on June 5, 2002, after notice to Sweet and a hearing. Sweet was formally served with the amended final judgment of injunction, and he never appealed or moved for relief from this judgment. See Fla. Fam.
L. R. P. 12.540. Sweet’s challenge to the service of process in 1998 is without merit. The order on appeal is therefore AFFIRMED. B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., concur. _____________________________
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Savage v. Rowell Distrib. Corp., 95 So. 2d 415 (Fla. 1957)
- Caldwell v. Caldwell, 921 So. 2d 759 (Fla. 1st DCA 2006)
- Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264 (Fla. 4th DCA 2013)
- Laura M. Watson, P.A. v. Stewart Tilghman FOX & Bianchi, P.A., 162 So. 3d 102 (Fla. 4th DCA 2014)