Kalb v. Sail Condo. Ass'n, Inc.

• Decision Date: 01 May 2013
• Docket Number: No. 3D12–1334.,3D12–1334.
• Citation: 112 So.3d 674
• Court: Florida District Court of Appeals
• Parties: Stuart R. KALB, Trustee, Appellant, v. The SAIL CONDOMINIUM ASSOCIATION, INC., Appellee.

112 So.3d 674

Stuart R. KALB, Trustee, Appellant,

v.The SAIL CONDOMINIUM ASSOCIATION, INC., Appellee.

No. 3D12–1334.

District Court of Appeal of Florida, Third District.

May 1, 2013.

Michael I. Rose, Miami, for appellant.

Keith D. Diamond, Weston, and Shutts & Bowen, and Aliette D. Rodz, Miami, for appellee.

Before WELLS, C.J., and SHEPHERD and SALTER, JJ.

SALTER, J.

Stuart Kalb, as assignee and trustee for the plaintiff, ThyssenKrupp Elevator Corp., appeals two non-final orders: (1) vacating a final default judgment, and (2) granting rehearing, but again vacating the default judgment and quashing the original service of process on the defendant. The defendant/appellee is The Sail Condominium Association, Inc. (Association). We reverse in part, affirm in part, and remand for further proceedings.

ThyssenKrupp sued the Association in March 2010 for breach of contract and breach of elevator repair orders. The process server served an employee of the Association's registered agent at the office of the registered agent. The Association did not file a responsive pleading, and a final default judgment for damages and attorney's fees was entered against it in May 2010.

Three months later, the Association filed the affidavit of Richard Layfield, an employee of the Association. Layfield swore, based on personal knowledge, that the lawsuit was received at the office of the Association and its registered agent. He swore further that the individual who received the lawsuit on behalf of the Association “failed to follow office procedure by not delivering the summons and complaint to our counsel.” Finally, he asserted under oath that “[t]here are meritorious defenses to the instant action, including but not limited to the following: [ThyssenKrupp] failed to perform as alleged in the complaint, and there were material defects with the product and installation and maintenance of the product.”

But remarkably, the Association did not file its “verified motion to vacate default final judgment and quash service of process” until February 2012 (twenty-one months after the final judgment was entered, and over eighteen months after Layfield's affidavit was filed).

On this record, the motion to vacate should not have been granted. The Association's argument that the judgment was void is incorrect. Service on the registered agent's employee was proper under section 48.081(3)(a), Florida Statutes (2010). Chapter 2004–273, section 2, Laws of Florida, amended section 48.081(3)(a) to add that “service of process shall be permitted on ... any employee of the registered agent.” Here, under the plain language of the statute, service on the employee was valid, and the resulting judgment was not void. See Seymour v. Panchita Inv., Inc., 28 So.3d 194 (Fla. 3d DCA 2010).

This conclusion renders the motion to vacate irremediably late. While a motion to vacate an order based on a void judgment can be filed at any time, motions to vacate on other grounds must be brought within one year of rendition. Fla. R. Civ. P. 1.540; Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). Trial courts do not have jurisdiction to entertain a Rule 1.540(b) motion filed more than one year after rendition of the judgment where there is no basis to exempt the motion from...