DANIEL J. DECKER AND ANGELA S. DECKER, APPELLANT,
v.
ROBERT A. KAPLUS, APPELLEE
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The Deckers appealed a default judgment against them, arguing it was void because the process server who served them lacked proper certification under Florida law. The appellate court affirmed the trial court's denial of their motion to set aside the judgment, holding that while the service was defective, it was not void because it provided actual notice, and the Deckers' challenge came too late under procedural rules.
The court held that although the service was defective and irregular, it was not void because it actually conveyed notice to the Deckers. A defective service that provides actual notice renders a judgment voidable, not void, and such a judgment can only be attacked within one year under Florida Rule of Civil Procedure 1.540(b). Because the Deckers failed to timely raise the defective service issue, their motion to set aside the judgment was properly denied.
[1] Defective service of process that conveys actual notice of proceedings renders a judgment voidable, not void.
[2] A judgment rendered voidable by irregular service of process may not be collaterally attacked.
Previewing 2 of 4 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“A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him! The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attacked.”
Establishes the key legal distinction between void and voidable service, which determines the court's jurisdiction and the remedies available to the defendant.
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Join FLexlaw to unlock all legal intelligenceA summons was issued in Orange County (Ninth Judicial Circuit) but served on the Deckers in Lake County (Fifth Judicial Circuit). The process server w…
The full statement of facts, procedural history, and disposition for this case are member content.
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PETERSON, J.
Daniel and Angela Decker appeal an order refusing to set aside a two and one-half year old judgment entered against them after default. We affirm. .
The Deckers contend that the default judgment was void as a matter of law because the service of process on them was defective and insufficient to subject them to the jurisdiction of the trial court that entered the judgment. They argue that the service of process was void under sections 48.27(1) and (2), Florida Statutes (1996), because the judgment creditor’s complaint was filed in one judicial circuit and served in another judicial circuit where the process server was unqualified to act.
The summons was issued in Orange County, part of the Ninth Judicial Circuit, and served in Lake County, part of the Fifth Judicial Circuit. The process server was certified pursuant to Florida Statutes section 48.27(2) to effect service in the Fifth Judicial Circuit, and under the 1996 version of this statute a certified process server was authorized to effect service only when the action was filed and the process was served within the same circuit, see, e.g., Abbate v. Provident National Bank, 631 So. 2d 312 (Fla. 5th DCA 1994).1 The process server also lacked the credentials of a “special process server” in Lake County pursuant to Florida Statutes section 48.021(3). See, e.g., Cheshire v. Birenbaum, 688 So. 2d 430 (Fla. 3d DCA 1997).
Although the service upon the Deckers was defective because the process server was not qualified under the former version of section 48.27 or section 48.021(3), Florida Statute (1996), it was not void. In State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936), the supreme court explained:
A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him! The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attacked.
(citations omitted). See also Nussbaum v. Cooke, 709 So. 2d 621 (Fla. 4th DCA 1998); Paleias v. Wang, 632 So. 2d 1132 (Fla. 4th DCA 1994)(Klein, J., concurring specially).
The Deckers service was irregular, but conveyed actual notice of the lawsuit against them. The final judgment was rendered voidable by the irregular process but not void. See, e.g., Cohen v. Drucker, 677 So. 2d 953 (Fla. 4th DCA 1996). In order to attack the voidable judgment, the Deckers had one year after the final judgment was entered to move to set aside the judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See, e.g., Craven v. J.M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). The Deckers failed to timely raise the issue of defective service of process and the trial court correctly denied their motion to vacate and set aside the final judgment. We affirm.
AFFIRMED.
THOMPSON and SAWAYA, JJ., concur. . Section 48.27(2), Fla. Stat. (1999) now allows the certified process server to effect process statewide.
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Tannenbaum v. Siobhan H. Shea, 133 So. 3d 1056 (Fla. 4th DCA 2014)…ion for rehearing or appeal and may be subject to collateral attack under specific circum [*1061] stances, but it cannot be challenged at any time as void under rule 1.540(b)(4).” Sterling Factors Corp., 968 So. 2d at 665; see also Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000). “Generally, a void judgment is one entered without subject matter jurisdiction or personal jurisdiction....” Zitani, 992 So. 2d at 409 (citation omitted); see also Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009…
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Nigel Shepheard and Heather Shepheard v. Deutsche Bank Tr. Co. Americas, 922 So. 2d 340 (Fla. 5th DCA 2006)…defendant based upon improper service by publication lacks authority of law. Batchin v. Barnett Bank of Southwest Florida, 647 So. 2d 211, 213 (Fla. 2d DCA 1994). Such improper service renders the judgment either void or voidable. Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000); Reina, 766 So. 2d at 292. The judgment is void where the service of process is so defective that it amounts to no notice of the proceedings. Reina, 766 So. 2d at 292. The judgment is voidable if the irregular or defective…1 / 2
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Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264 (Fla. 4th DCA 2013)…ents, which a party may move to vacate at any time, and voidable judgments, which a party must move to vacate within one year of the entry of the judgment. See Cannella v. Auto-Owners Ins. Co., 801 So. 2d 94, 100 (Fla.2001) (citing Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000)). A total lack of service of process renders a judgment void, not voidable. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So. 2d 1079, 1080 (Fla. 4th DCA 2000) (“[A] judgment entered without service of process on…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Chillingworth, 126 Fla. 645 (Fla. 1936)
- Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969)
- Paleias v. Wang, 632 So. 2d 1132 (Fla. 4th DCA 1994)
- Abbate v. Provident Nat'l Bank, 631 So. 2d 312 (Fla. 5th DCA 1994)
- Cohen v. Zacharia Drucker, 677 So. 2d 953 (Fla. 4th DCA 1996)
- Nussbaum v. Cooke, 709 So. 2d 621 (Fla. 4th DCA 1998)
- Cheshire v. Birenbaum, 688 So. 2d 430 (Fla. 3d DCA 1997)