final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 13-3631, David C. Miller, Judge.
Office of Douglas D. Stratton, P.A. and Douglas D. Stratton,
J. Grabois, P.L. and Eric J. Grabois, for appellee CM7
EMAS, C.J., and FERNANDEZ, and MILLER, JJ.
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.
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." Appellant was not served with a copy of
the order of dismissal.
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.
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.")).
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 ...