Falkner v. Amerifirst Federal Sav. and Loan Ass'n
Decision Date | 01 April 1986 |
Docket Number | No. 85-2292,85-2292 |
Parties | 11 Fla. L. Weekly 763 Arthur FALKNER and Syble Falkner, his wife, Appellants, v. AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, previously known as First Federal Savings and Loan Association of Miami, a United States corporation, Appellee. |
Court | Florida District Court of Appeals |
Arthur Falkner and Syble Falkner, Ft. Lauderdale, in prop. per.
Blackwell, Walker, Fascell & Hoehl and Diane H. Tutt, for appellee.
Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
Plaintiffs appeal from an order denying their motion to vacate and set aside orders of dismissal. We reverse.
The Falkners commenced this action, pro se, against Amerifirst Federal Savings and Loan Association (Amerifirst) for "restitution of monies paid" under a mortgage. Amerifirst filed a motion to dismiss and notice of hearing which was concededly mailed to an incorrect address. The order of dismissal was granted at a hearing which the Falkners did not attend. 1 The Falkners testified, at a hearing on the motion to vacate, that they received a copy of the motion to dismiss and notice of hearing after the hearing, and about the same time they received a copy of the order of dismissal. That testimony is undisputed.
Instead of moving to vacate the order of dismissal, the Falkners filed an amended complaint some five and one-half months later which Amerifirst again moved to dismiss, asserting that the order of dismissal barred the filing of the amended complaint. Finding the first order of dismissal dispositive, the court entered an order dismissing the amended complaint. The Falkners' motion to vacate both orders of dismissal was denied. We held, in an earlier review of this case, that the dismissal of the Falkners' complaint constituted a final judgment in the cause and affirmed the judgment on res judicata grounds, without deciding whether the judgment could be set aside, pursuant to Florida Rule of Civil Procedure 1.540(b)(4), as void. Falkner v. Amerifirst Federal Savings and Loan Association, 467 So.2d 746 (Fla. 3d DCA 1985). We now consider that question.
A judgment entered without due service of process is void. See Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Grahn v. Dade Home Services, Inc. 277 So.2d 544 (Fla. 3d DCA 1973). On motion, a court may, at any time, relieve a party from a void final judgment. See Sams Food Store, Inc. v. Alvarez, 443 So.2d 211 (Fla. 3d DCA 1983); Tucker v. Dianne Electric, Inc. 389 So.2d 683 (Fla. 5th DCA 1980); McAlice. See also Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla.1960) ( ).
The Falkners filed a sworn motion to vacate and set aside the orders of dismissal wherein they alleged lack of notice prior to a hearing on the motion to dismiss. Testimony in support of the motion to vacate was uncontroverted. Where the uncontroverted facts showed that the Falkners did not receive notice, the trial court was obligated to grant relief from the judgment as a matter of law.
Reversed and remanded.
I write separately because I believe that AmeriFirst's contention that the Falkners' Rule 1.540(b) motion was not made within a reasonable time should be addressed.
AmeriFirst correctly points out that Florida Rule of Civil Procedure 1.540(b) expressly provides that a motion made thereunder for any of the rule's enumerated reasons (among which is that "the judgment or decree is void") shall be made within a reasonable time. 2 Moreover, as AmeriFirst asserts, the holding in Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970), supports its contention that the rule means what it says. 3
It appears, however, that, Osceola aside, it is universally agreed that, despite the "reasonable time" language of this and virtually identical rules, a motion attacking a void judgment need not be made within a reasonable time and can, as the majority opinion concludes, be made at any time. Thus, as the Fifth District (ignoring Osceola ) has held, Rule 1.540(b) does not mean what it says:
Whigham v. Whigham, 464 So.2d 674, 676 (Fla. 5th DCA), pet. for rev. denied, 475 So.2d 696 (Fla.1985).
Whigham is consistent with every other pronouncement on the subject by courts construing Federal Rule of Civil Procedure 60(b), from which Florida's Rule 1.540(b) derives. 4 See Whitney-Forbes, Inc. v. Coar, 770 F.2d 692 (7th Cir.1985) ( ); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n. 9 (10th Cir.1979) ( ); Misco Leasing, Inc. v. Vaughan, 450 F.2d 257, 260 (10th Cir.1971) (); Taft v. Donellan Jerome, Inc., 407 F.2d 807 (7th Cir.1969) ( ); Austin v. Smith, 312 F.2d 337, 343 (D.C.Cir.1962) ( ). See also Bookout v. Beck, 354 F.2d 823 (9th Cir.1965) ( ); Yanow v. Weyerhaeuser Steamship Co., 274 F.2d 274 (9th Cir.1959) (same). Likewise, other state courts construing rules patterned after Federal Rule 60(b) hold without exception that laches cannot breathe life into a judgment void at its inception and that the "reasonable time" language of their rules does not apply to motions to set aside void judgments. See Calasa v. Greenwell, 633 P.2d 553 (Hawaii Ct.App.1981); Barkley v. Toland, 7 Kan.App.2d 625, 646 P.2d 1124 (1982); Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 448 N.E.2d 1293, rev. denied, 451 N.E.2d 1167 (Mass.1983); Reynaud v. Koszela, --- R.I. ----, 473 A.2d 281 (1984). See also 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2862 and cases at 52 nn. 75, 76 (Supp.1985); 7 J. Moore, Moore's Federal Practice p 60.25 (2d ed. 1985).
In sum, then, "[i]t is well established ... that, despite what a literal reading of the rule would suggest,...
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