STATE OF FLORIDA, DEPARTMENT OF REVENUE ON BEHALF OF SHIRLEY D. PRINZEE, APPELLANT,
v.
CALVIN LAMAR THURMOND, APPELLEE
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The State of Florida sought to vacate a trial court order dismissing a child support case against Calvin Lamar Thurmond after the State failed to appear at a hearing of which it received no notice. The appellate court reversed, holding that judgments entered without notice to a party are void ab initio and may be vacated at any time.
The court held that a judgment entered without notice to a party is void ab initio and may be vacated at any time under Florida Rule of Civil Procedure 1.540(b)(4). The trial court therefore abused its discretion in denying the State's motion to vacate the dismissal order.
[1] A judgment entered without notice to a party is void ab initio.
[2] Relief from a void judgment may be granted at any time pursuant to Florida Rule of Civil Procedure 1.540(b)(4).
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Join FLexlaw to unlock all legal intelligence“This court has repeatedly held that a judgment entered without notice to a party is void ab initio.”
Establishes the fundamental principle that judgments lacking proper notice are void from their inception
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Join FLexlaw to unlock all legal intelligenceThe State filed a child support action against Thurmond in 1984, and the court entered an order requiring Thurmond to pay $50 every two weeks. In 1988…
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PER CURIAM.
This is an appeal from an order denying the state’s motion to vacate and set aside the trial court’s order dismissing this cause. We reverse.
The State of Florida, on behalf of Shirley D. Prinzee, originally commenced this action against Calvin Lamar Thurmond, for payment of child support, in 1984. The court subsequently entered an order confirming a stipulation between the parties for Thurmond to pay fifty dollars every two weeks as child support. In 1988, the lower court found Thurmond to be in arrears for the years 1986 and 1987. Accordingly, the court issued a writ of bodily attachment and an income deduction order. On June 8, 1995, the trial court sua sponte entered an order scheduling an uncontested final hearing and/or status conference for this case. The face of the order clearly reflects that it was mailed only to Thurmond’s counsel, but Thurmond’s counsel was directed in the body of the order to notify all other parties. When the state thereafter failed to make an appearance at the scheduled hearing, the court entered an order dated July 18, 1995, dismissing this cause and setting aside the writ of bodily attachment.
On January 29, 1998, the state moved to vacate this order of dismissal pursuant to Florida Rule of Civil Procedure rule 1.540(b)(4) 1, on the grounds that it had received no notice of the final hearing and/or status conference and that the order was otherwise prejudicial. Although the trial court acknowledged that the state had received no notice of the hearing, it summarily denied the state’s motion. In so doing, we agree with the state that the court erred.
This court has repeatedly held that a judgment entered without notice to a party is void ab initio. See Metropolitan Dade County v. Curry, 632 So. 2d 667, 668 (Fla. 3d DCA 1994); Cam-La, Inc. v. Fixel, 632 So. 2d 1067, 1068 (Fla. 3d DCA 1994); McAdam v. Thom, 610 So. 2d 510, 512 (Fla. 3d DCA 1992) Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988); Falkner v. Amerifirst Federal Savings and Loan Ass’n, 489 So. 2d 758, 759 (Fla. 3d DCA 1986); Gelkop v. Gelkop, 384 So. 2d 195,199 (Fla. 3d DCA 1980). In accordance with rule 1.540(b)(4), relief from a void judgment may therefore be granted at any time. See Curry, 632 So. 2d at 668; Shields, 528 So. 2d at 968; Falkner, 489 So. 2d at 759. Indeed, this legal principle is grounded in the notion that “[t]he passage of time cannot make valid that which has always been void”. Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla.1960). Thus, we conclude that the lower court abused its discretion when it denied the state’s motion seeking to vacate the order of dismissal. See Watson v. Watson, 583 So. 2d 410, 411 (Fla. 4th DCA 1991); Taylor v. Bowles, 570 So. 2d 1093, 1094 (Fla. 4th DCA 1990); Clement v. Marcus, Stowell & Beye, Inc., 516 So. 2d 1137, 1138 (Fla. 4th DCA 1987). Hence, we reverse and remand with directions that this cause, including the writ of bodily attachment, be reinstated.
Reversed.
. This rule provides, in relevant part, that:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (4) that the judgment or decree is void[.]
Fla. R. Civ. P. 1.540(a)(4).
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Cited By (13 total)
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Yoanky DE LA OSA v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d DCA 2016)…the term “judgment” as used in Rule 1.540(b)(4) included final “orders.” This reasoning is not new. In 1998, this court held that the term “judgment,” as specifically used in Rule 1.540(b)(4), included final “orders.” Dep’t of Revenue v. Thurmond, 721 So. 2d 827, 828 (Fla. 3d DCA 1998). In Thurmond, we reversed a trial court that declined to vacate a final order dismissing a case because the Department of Revenue failed to appear for a “final hearing and/or status conference” when the uncontested record ref…1 / 2
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Renovaship, Inc. v. Barclay Quatremain, 208 So. 3d 280 (Fla. 3d DCA 2016)…d is void. See, e.g., Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990); U.S. Bank Nat. Ass’n v. Proenza, 157 So. 3d 1075 (Fla. 3d DCA 2015); Rodriguez v. ALS Commercial Funding, LLC, 138 So. 3d 491 (Fla. 3d DCA 2014); State ex rel. Prinzee v. Thurmond, 721 So. 2d 827 (Fla. 3d DCA 1998) and cases cited. However, Quatremain does not claim that he was not given notice of the hearing on the motion to dismiss for lack of prosecution; nor does Quatremain contend that his failure to attend the hearing was the result o…
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Amruta Nilay Shah v. Nilay R. Shah, 178 So. 3d 70 (Fla. 3d DCA 2015)…ny at the July 30,2014 hearing and entered final judgment. This constituted error. Due process requires proper notice and an opportunity to be heard. See Rodriguez v. Santana, 76 So. 3d 1035, 1037 (Fla. 4th DCA 2011); Dep't of Revernue v. Thurmond, 721 So. 2d 827, 828 (Fla. 3d. DCA 1998). The trial court’s July 30, 2014 notice of hearing notified the parties that if an answer to the petition had been filed, the hearing would serve as a status conference rather than a final hearing. The trial court, however,…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)
- Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla. 1960)
- Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)
- Taylor v. Bowles, 570 So. 2d 1093 (Fla. 4th DCA 1990)
- Cintron v. State, 583 So. 2d 410 (Fla. 4th DCA 1991)
- Watson v. Watson, 583 So. 2d 410 (Fla. 4th DCA 1991)
- Clement v. Marcus, 516 So. 2d 1137 (Fla. 4th DCA 1987)
- Metro. Dade Cnty. v. Curry, 632 So. 2d 667 (Fla. 3d DCA 1994)
- McADAM v. Thom, 610 So. 2d 510 (Fla. 3d DCA 1992)