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Lamoise Group, LLC v. The Edgewater South Beach Condominium Association, Inc.

Florida Court of Appeals, Third District

August 14, 2019

Lamoise Group, LLC, Appellant,
v.
The Edgewater South Beach Condominium Association, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 13-3631, David C. Miller, Judge.

          Law Office of Douglas D. Stratton, P.A. and Douglas D. Stratton, for appellant.

          Eric J. Grabois, P.L. and Eric J. Grabois, for appellee CM7 Investment, Inc.

          Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.

          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 Investment, Inc. Following the commencement of litigation, appellant filed a crossclaim against appellee. 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.

         Nearly two years later, appellant discovered the entire action stood dismissed. Thereafter, it petitioned the lower court for relief from the dismissal "pursuant to Florida Rule of Civil Procedure 1.540(b)(4), which[, regardless of the passage of time, ] authorizes a trial court to afford relief to a party when '[a] judgment or decree is void.'" Courtney v. Catalina, Ltd., 130 So.3d 739, 740 (Fla. 3d DCA 2014) (quoting Fla. R. Civ. P. 1.540(b)(4)). The court conducted an evidentiary hearing and found appellant received neither advance notice its crossclaim was subject to dismissal, nor a copy of the rendered dismissal order. 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 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 ...


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