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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 30

JULY 26, 2024

TRIAL COURT ERRED IN DENYING MOTION TO VACATE VOID DISMISSAL ORDER WHERE MOTION WAS FILED WITHIN A REASONABLE TIME FOLLOWING DISMISSAL – RULE 1.070(J) DOES NOT PROVIDE FOR AN “AUTOMATIC” DISMISSAL FOR FAILURE TO TIMELY PERFECT SERVICE

Albo v. Maartel, 49 Fla. L. Weekly D1517 (Fla. 3rd DCA July 17, 2024):

The plaintiff filed suit and before effectuating service upon the initial defendants, amended her complaint to add several other defendants.

Thereafter, the plaintiff served one of the defendants and tried to serve two other defendants at an address they claimed was not theirs. A year later, the trial court dismissed the claims against those defendants without prejudice, giving the plaintiff 120 days to properly serve those defendants.

Four months later, the court vacated the dismissal order and granted the defendants’ original motion to quash. In so doing, the court granted the plaintiff 120 days to properly serve the defendants. The order did not indicate that the amended complaint would be dismissed if the plaintiff failed to effectuate service within the allotted 120 days.

Despite many attempts, the plaintiff was unable to serve the defendants within the 120-day period. One week after the 120 days expired, the trial court sua sponte dismissed the action based on the plaintiff’s failure to comply with the court’s order to serve within the 120 days.

The order dismissed the entire action without prejudice, including those claims filed against other defendants who had been served and had filed answers and affirmative defenses. Ten months later, the plaintiff filed a motion to vacate the dismissal order, contending it was void for lack of due process because the plaintiff was never provided notice or an opportunity to be heard before the entry of the order.

Attached to the motion were returns of non-service, reflecting three separate attempts to serve the defendants in Miami-Dade, and four more attempts to serve them in California.

The court explained that normally it reviews an order denying a motion to set aside or vacate an order of dismissal for an abuse of discretion. But where the motion to vacate depends upon whether the underlying order is void, the determination becomes a legal question reviewed de novo.

A judgment is void rather than voidable when it is entered by a court lacking jurisdiction over the subject matter of the case, or jurisdiction of the person, creating a violation of due process. A final judgment without notice and opportunity to be heard is a violation of due process.

Florida Rule of Civil Procedure 1.070 sets forth the procedure for issuance of a summons and service of process. Subdivision (j) states that process must be served within 120 days and if not made, the court on its own initiative — after notice or on a motion — must direct that service be effected within a specific time, it may dismiss the case with prejudice, or it may drop the defendant as a party. However, if the plaintiff shows good cause or excusable neglect for the failure to serve, the court must extend the time period.

Because the trial court here entered the sua sponte dismissal order without notice and opportunity to be heard, the order was void, meaning that the trial court erred in denying the plaintiff’s motion to vacate which the court found was filed within a reasonable time following dismissal.