LAMOISE GROUP, LLC,

v.

THE EDGEWATER SOUTH BEACH CONDOMINIUM ASSOCIATION, INC., ET AL. ,

MILLER, J.

Appellant, Lamoise Group, LLC, challenges the denial of its motion to vacate a final decree dismissing the entire action, including its crossclaim.

Appellant contends that a deprivation of due process renders the crossclaim dismissal void ab initio, thus, the lower tribunal erred in denying relief under Florida Rule of Civil Procedure 1.540(b)(4). For the reasons articulated below, we reverse.

FACTS The genesis of this dispute lies in a lawsuit initiated by Edgewater South Beach Condominium Association, Inc. (“Edgewater”) against appellant and appellee, CM⁷

Pursuant to a joint motion for voluntary dismissal, Edgewater and appellee, “move[d] for an order dismissing each party’s claims against each other.” Although both appellee and Edgewater signed the joint motion, appellant did not, and the motion excluded any reference to appellant’s crossclaim. The predecessor court entered a final order of dismissal, without conducting a hearing, writing “this matter is and the same is hereby dismissed with prejudice.”¹ Appellant was not served with a copy of the order of dismissal.

Nonetheless, it determined that the final order was voidable, rather than void, thus, the failure to move for relief within one year after the entry of the decree proved fatal. See Fla. R. Civ. P. 1.540(b)(1-3). The instant appeal ensued.

STANDARD OF REVIEW Ordinarily, we review an order denying relief from a final judgment under rule 1.540(b) for an abuse of discretion. Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1998).

However, “[a] decision whether or not to vacate a void judgment is not within the ambit of a trial court's discretion; if a judgment previously entered is void, the trial court must vacate the judgment.” Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d DCA 2014); see also Horton v. Rodriguez Espaillat y Asociados, 926

plaintiff’s original claim against the crossclaiming defendant has been dismissed.”) (citation omitted).

So. 2d 436, 437 (Fla. 3d DCA 2006) (“If it is determined that the judgment entered is void, the trial court has no discretion, but is obligated to vacate the judgment.”) (citation omitted). “As a trial court's ruling on whether a judgment is void presents a question of law, an appellate court reviews the trial court's ruling de novo.” Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017) (citing Vercosa v. Fields, 174 So. 3d 550, 552 (Fla. 4th DCA 2015) (“Whether a judgment is void is a question of law reviewed de novo.”)).

ANALYSIS Rule 1.540(b)(4) provides relief from void judgments and decrees where the motion for relief is “filed within a reasonable time,” whereas relief from voidable judgments must be sought no more than one year after entry. Fla. R. Civ. P. 1.540(b) (“The motion [for relief] shall be filed within a reasonable time, and for reasons (1), (2), and (3), not more than [one] year after the judgment, decree, order, or proceeding was entered or taken.”); see Shields, 528 So. 2d at 968; 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). Certainly, there is “a distinction . . . between a judgment that is void and one that is voidable.” Tannenbaum v. Shea, 133 So. 3d 1056, 1060 (Fla. 4th DCA 2014) (citation omitted). “A void judgment is so defective that it is deemed never to have had legal force and effect.” Dabas v. Boston Inv’rs Grp., Inc., 231 So. 3d 542, 545 (Fla. 3d DCA 2017) (citation omitted).

“Generally, a judgment is void if: (1) the trial court lacks subject matter jurisdiction; (2) the trial court lacks personal jurisdiction over the party; or (3) if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard.” Diaz, 227 So. 3d at 729 (citing Tannenbaum, 133 So. 3d at 1061).

Procedural due process requires fair notice and a real opportunity to be heard and defend in a manner “appropriate to the nature of the case,” before judgment is rendered.² Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L. Ed. 2d 62 (1965) (“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.”) (citations omitted); see J.B. v. Fla. Dep't of Children & Family Servs., 768 So. 2d 1060, 1063 (Fla. 2000) (“Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice.”) (quoting Dep't of Law Enforcement v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991)).

It is axiomatic that “[p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they

must first be notified.” Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556 (1971) (citation omitted). Here, as both parties acknowledged, and the trial court found, appellant, a non-party to the motion for voluntary dismissal, did not receive notice that the continuing viability of its crossclaim was subject to imminent adjudication.

Accordingly, appellant was denied procedural due process, and the ensuing judgment was void. See Bank of N.Y. Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So. 3d 282, 285 (Fla. 2015) (“[W]here a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given the opportunity to be heard, then errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.”) (citation omitted); Dabas, 231 So. 3d at 546 (“[T]he [appellant’s] due process rights were not violated because the [appellant] received notice of the hearing and was given an opportunity to be heard.

Thus, the deficiency judgment was not void.”); cf. Contrera v. Mendez, 194 So. 3d 396 (Fla. 3d DCA 2016) (holding that procedural defects resulting from a pro se litigant’s failure to provide an address of record for service of papers, after withdrawal of counsel, did not constitute a denial of due process for purposes of construing rule 1.540(b)).

Finally, Florida Rule of Civil Procedure 1.080(a) requires “all orders” issued by a trial court be “served in conformity with the requirements of Florida Rule of Judicial Administration 2.516,” which delineates the permissible methods of service of pleadings, other documents filed by the parties, and court orders. See Fla. R. Jud. Admin. 2.516(b) (“When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.”). Here, the failure to furnish appellant with a copy of the final disposition, in combination with the earlier deprivation of notice, rendered the decree void.³ Courtney, 130 So. 3d at 740 (reversing the denial of a motion to vacate an order of dismissal where appellant was not served with a notice of inactivity and the dismissal order as required by the Florida Rules of Civil Procedure and pursuant to due process principles).

CONCLUSION As the denial of procedural due process rendered the decree void, rather than voidable, and appellant promptly sought relief upon learning of the fate of its crossclaim, we conclude the trial court erred in denying the motion to vacate. See Curbelo v. Ullman, 571 So. 2d 443, 445 (Fla.1990); Ryan's Furniture Exch., Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935); Demir v. Schollmeier, 273 So. 3d 59, 62 (Fla. 3d DCA 2018); Deutsche Bank Nat'l Tr. Co. v. Basanta, 88 So. 3d 216, 218 (Fla. 3d DCA 2011); Shields, 528 So. 2d at 968; Niki Unlimited,

Inc. v. Legal Servs. of Greater Miami, 483 So. 2d 46, 48 (Fla. 3d DCA 1986). Accordingly, we reverse the order under review and remand for reinstatement of the crossclaim. Reversed and remanded.