126 So. 3d 1264
Fla. Dist. Ct. App.2013Background
- Kozinski sued Jill Phillips on a fee-retainer/notes theory; promissory note for $750,000 tied to the fee, executed Sept. 2010; complaint filed Dec. 22, 2010 with acceptance of service by Phillips; Phillips waived service of summons in a December 23, 2010 document (not filed).
- Kozinski sent notices and a hearing on default; Phillips did not appear; final judgment entered Jan. 14, 2011 in Kozinski’s favor for $450,000.
- Jill Phillips moved in Oct. 2012 to vacate the judgment under Fla. R. Civ. P. 1.540, arguing service defects and the absence of the original promissory note rendered the judgment void.
- Trial court vacated the judgment, held it void, quashed acceptance/waiver and allowed a new complaint; ordered 120 days for new filing.
- On appeal, court held defective service was sufficient to put Phillips on notice, so the judgment was voidable, not void; Kozinski did not need to attach the original promissory note since the action was rooted in the fee agreement, not the note; reversed and remanded to reinstate the 2011 judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defective service made the judgment void or voidable | Kozinski: service defective but notice adequate; voidable label applies | Phillips: service defective renders judgment void | Voidable judgment; one-year limit applies to vacatur period |
| Whether the one-year limit for voidable judgments applied | Kozinski: notice defects did not void the judgment; time barred for voidable judgments | Phillips: timely motion under 1.540 | One-year limit applies; motion filed beyond one year was not timely for voidable judgments |
| Whether filing/attaching the original promissory note was required | Kozinski: not required; action arises from fee agreement | Phillips: note must be attached/filed | Not required; action pleaded under fee agreement, not the promissory note |
Key Cases Cited
- Cannella v. Auto-Owners Ins. Co., 801 So.2d 94 (Fla. 2001) (void vs voidable judgment distinction; service defects render voidable)
- Decker v. Kaplus, 763 So.2d 1229 (Fla. 5th DCA 2000) (one-year limit for voidable judgments; timing to vacate)
- M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079 (Fla. 4th DCA 2000) (total lack of service renders void; defective service is voidable)
- Paleias v. Wang, 632 So.2d 1132 (Fla. 4th DCA 1994) (notice required; defects waived if not timely raised)
- Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969) (party must act diligently to contest irregular service)
- State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936) (early authority on service and jurisdiction)