WALTER W. LEIPUNER, APPELLANT,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC), APPELLEE
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Walter Leipuner appealed an order denying his motion to vacate a 1986 judgment against him, arguing the judgment was void due to lack of personal jurisdiction. The court affirmed the denial, holding that Leipuner failed to establish grounds for relief because he did not deny service and because his attorney's appearance constituted a waiver of any service defects.
The judgment was not void because Leipuner failed to establish grounds for relief. Although he claimed to be in Costa Rica, he did not deny being served at the cited address on October 31, 1985, and his attorney's appearance in the proceedings constituted a general appearance that waived any defects in service or jurisdiction.
[1] A judgment entered without due service of process is void.
[2] An evidentiary hearing is required when allegations in an affidavit supporting a motion for relief from judgment, if proven, would establish that the judgment is void.
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Join FLexlaw to unlock all legal intelligence“A judgment entered without due service of process is void.”
Establishes the general principle that service of process is a prerequisite to jurisdiction, but does not apply to Leipuner's case because he did not deny service.
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Join FLexlaw to unlock all legal intelligenceA final money judgment was entered against Leipuner in 1986. In June 2002, Leipuner moved to vacate the judgment, claiming he could not have been serv…
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THOMPSON, J.
Walter W. Leipuner appeals an order denying his motion to vacate a judgment. We affirm.
In 1986, a final money judgment was entered against Leipuner. In June 2002, Leipuner moved for vacation of the judgment on the ground that it was void because the court had lacked personal jurisdiction over Leipuner. The record contains a return of service of process showing that Leipuner was served at an address on Atlantic Avenue in New Smyrna Beach, Florida on 31 October 1985. In his affidavit in support of the motion, Leipuner stated that although the record contained a return of service, he was residing in Costa Rica in 1985 and 1986, so he could not have been served in Florida. He also stated that he had been informed that an attorney named William Henderson entered an appearance on his behalf, but that Leipuner did “not recall retaining said attorney for that purpose.”
A judgment entered without due service of process is void. Carter v. Lil’ Joe Records, Inc., 829 So. 2d 953 (Fla. 4th DCA 2002). An evidentiary hearing is required where the allegations of an affidavit in support of a motion for relief from judgment, if proven, would establish that the judgment is void. See Monsour v. Balk, 705 So. 2d 968 (Fla. 2d DCA 1998) (ordering trial court to hold evidentiary hearing to determine if allegations of affidavit were true). In the instant case, Leipuner has not established a basis for relief because even if the allegations in his affidavit were true, they would not establish that the judgment is void. First, he does not deny that he was served process; the fact that he may have resided in Costa Rica during the relevant period does not mean that on 31 October 1985 he was not at the address on Atlantic Avenue cited in the return of service. Furthermore, the affidavit does not refute the record showing that an attorney appeared for him and that therefore any defect in or lack of service was waived. Participation in the proceedings amounts to a general appearance, and thereby constitutes a waiver of any alleged defects in service or in jurisdiction. Martin v. Ullman, 555 So. 2d 1232 (Fla. 3d DCA 1989).
AFFIRMED.
PLEUS and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Johnson v. State, 973 So. 2d 1236 (Fla. 1st DCA 2008)…sum, absent record refutation of allegations in the motion for relief from judgment, allegations which “if proven, would establish that the judgment is void,” the trial court must conduct an evidentiary hearing. Leipuner v. Fed. Deposit Ins. Corp., 860 So. 2d 1027, 1028 (Fla. 5th DCA 2003); see also Pallai v. Dep’t of Revenue ex rel. Tipton, 955 So. 2d 1205, 1206 (Fla. 2d DCA 2007) (reversing trial court’s order denying a motion to vacate a 1992 paternity judgment alleged to be void and remanding the matter t…
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Caldwell v. Caldwell, 921 So. 2d 759 (Fla. 1st DCA 2006)…rsuant to the “tipsy coachman rule,” we affirm. First Union Nat’l Bank v. Turney, 839 So. 2d 774, 777 (Fla. 1st DCA 2003). By entering a general appearance without contesting personal jurisdiction; Caldwell waived this defense. Leipuner v. F.D.I.C., 860 So. 2d 1027, 1028 (Fla. 5th DCA 2003); Lennar Homes, Inc. v. Gabb Constr. Servs., 654 So. 2d 649, 651 (Fla. 3d DCA 1995). See also Solmo v. Friedman, 909 So. 2d 560, 564 (Fla. 4th DCA 2005)(“If a party does not challenge personal jurisdiction until after a gene…
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Sewell v. Colee, 132 So. 3d 1186 (Fla. 3d DCA 2014)…to grant the petition. Accordingly, we issue a writ of certiorari to vacate the judgment. We remand the matter with instructions to the trial court to conduct an evidentiary hearing on the renewed motion dated August 10, 2011. See Leipuner v. FDIC, 860 So. 2d 1027, 1028 (Fla. 5th DCA 2003) (“An evidentiary hearing is required where the allegations of an affidavit in support of a motion for relief from judgment, if proven, would establish that the judgment is void.”).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Filiherto Raul Martin, R.N. v. Ullman, 555 So. 2d 1232 (Fla. 3d DCA 1989)
- Monsour v. Bruce Balk, A.I.A., P.A., 705 So. 2d 968 (Fla. 2d DCA 1998)
- Donte Terrell Carter v. LIL' JOE Records, Inc., 829 So. 2d 953 (Fla. 4th DCA 2002)