Third District Court of Appeal
State of Florida
Opinion filed December 14, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-98
Lower Tribunal No. 13-7413
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Metropolitan Mortgage Company of Miami, etc.,
Appellant,
vs.
Ivor H. Rose, etc.,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Alan Fine, Judge.
Shutts & Bowen LLP, Patrick G. Brugger, and Matthew S. Sackel, for
appellant.
Law Offices of Anthony Accetta, P.A., Anthony Accetta, Law Office of
Lazaro Vazquez, P.A., Lazaro Vazquez, Quintana Law Firm, J. Luis
Quintana, and Kirk Villalón, for appellee.
Before EMAS, HENDON, and MILLER, JJ.
MILLER, J.
Appellant, Metropolitan Mortgage Company of Miami, challenges a
lower court order denying its Florida Rule of Civil Procedure 1.540(b) motion
to vacate an order of dismissal for failure to prosecute. Because “the
uncontroverted facts showed that [Metropolitan Mortgage and its counsel]
did not receive notice,” we conclude the trial court was obligated to grant
relief. Falkner v. Amerifirst Fed. Sav. & Loan Ass’n,
489 So. 2d 758, 759
(Fla. 3d DCA 1986).
BACKGROUND
This case is one of eight related lawsuits filed contemporaneously by
the law firm of Shutts & Bowen, LLP on behalf of Metropolitan Mortgage.
Five of the cases involving claims against appellee, Ivor H. Rose, were
consolidated for discovery purposes. The parties engaged in protracted
discovery, and, in 2018, the five cases were set for a non-jury trial.1 Shortly
before the slated trial date, the parties reached an oral settlement which later
culminated in written agreements in the five consolidated cases.
Meanwhile, in 2016, the clerk of court generated a notice of inactivity
pursuant to Florida Rule of Civil Procedure 1.420(e) and order to appear for
hearing in the instant case. Although the notice reflected it was mailed to “all
1
Rose’s related claim against third-party defendant Stewart Title Guaranty
Company was severed.
2
counsel/parties of record,” it further indicated “METROPOLITAN MORT CO
OF MIA No Known Address.” Only Rose’s counsel appeared at the hearing
on the notice of inactivity, and a predecessor judge dismissed the case for
failure to prosecute.
The settlements in the consolidated cases were formalized in 2019,
and lead counsel for Metropolitan Mortgage subsequently discovered the
order of dismissal on the docket. A week later, he filed a motion seeking to
void the dismissal pursuant to Florida Rule of Civil Procedure 1.540(b). In
the motion, he contended neither he nor his client received the notice of
inactivity and the ensuing order. He attributed the lack of notice to the clerk’s
failure to enter his law firm as counsel of record on the docket.
The court conducted a preliminary hearing, at which Rose’s counsel
commendably conceded, “[i]f [Metropolitan Mortgage’s counsel] says he
didn’t get it, he didn’t get it.” Nonetheless, because the parties disputed
whether Metropolitan Mortgage pursued relief within a reasonable time, the
trial court granted an evidentiary hearing.
At the hearing, Metropolitan Mortgage’s lead counsel testified he did
not receive the notice of inactivity or dismissal order and was unable to locate
the relevant documents in Shutts & Bowen’s internal filing system. An
associated attorney corroborated his testimony to the extent that she did not
3
receive the documents, and the president of Metropolitan Mortgage attested
that he did not receive either document.
Rose did not rebut the testimony and instead argued that Metropolitan
Mortgage unreasonably delayed in seeking relief from judgment. At the
conclusion of the hearing, the court denied relief. The instant appeal
followed.
STANDARD OF REVIEW
Ordinarily, we review an order denying relief from a final judgment
under Florida Rule of Civil Procedure 1.540(b) for an abuse of discretion.
See Shields v. Flinn,
528 So. 2d 967, 968 (Fla. 3d DCA 1988). 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) (quoting State, Dep’t of Transp. v.
Bailey,
603 So. 2d 1384, 1386–87 (Fla. 1st DCA 1992)) (“If it is determined
that the judgment entered is void, the trial court has no discretion, but is
obligated to vacate the judgment.”).
ANALYSIS
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Florida Rule of Civil Procedure 1.540(b)(4) authorizes relief from void
judgments and decrees. The text of the rule expressly requires the moving
party to file the motion for relief “within a reasonable time.” Nonetheless, this
court and our sister courts have “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 . . . be made at any time.” Falkner,
489 So. 2d at 759–60 (Pearson, J.,
specially concurring); Reyes v. Aqua Life Corp.,
209 So. 3d 47, 51 (Fla. 3d
DCA 2016) (“Judgments entered without notice are void, and relief from a
void judgment may be granted at any time.”); Metropolitan Dade County v.
Curry,
632 So. 2d 667, 668 (Fla. 3d DCA 1994) (citations omitted) (“An order
entered without notice or opportunity to be heard is a void order. A void order
may be attacked at any time.”). Consequently, while Rose persuasively
argues that Metropolitan Mortgage unreasonably delayed the filing of the
motion, we are constrained by our precedent to eschew equitable factors
and examine only whether the judgment is void. 2
2
Rose essentially contends the settlement agreement contemplated this
case would remain dismissed. Our ruling is without prejudice to the parties
taking further action, including, but not limited to, enforcing the settlement
terms in the related cases.
5
“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 over the
person . . . or where there is a violation of due process.” State Farm Mut.
Auto. Ins. Co. v. Statsick,
231 So. 3d 528, 531 (Fla. 2d DCA 2017).
Conversely, “a voidable judgment is a judgment that has been entered based
upon some error in procedure that allows a party to have the judgment
vacated, but the judgment has legal force and effect unless and until it is
vacated.” Sterling Factors Corp. v. U.S. Bank Nat. Ass’n,
968 So. 2d 658,
665 (Fla. 2d DCA 2007). A final judgment “entered without notice and an
opportunity to be heard is void as a violation of due process.” Purdue v. R.J.
Reynolds Tobacco Co.,
259 So. 3d 918, 922 (Fla. 2d DCA 2018); see also
Curbelo v. Ullman,
571 So. 2d 443, 445 (Fla. 1990).
In construing the reach of rule 1.540(b), this court has held the term
“judgment” is synonymous with final “order.” See State, Dep’t of Revenue v.
Thurmond,
721 So. 2d 827, 828 (Fla. 3d DCA 1998) (finding Florida Rule of
Civil Procedure 1.540(b)(4) mandated reversal of trial court’s order); De La
Osa v. Wells Fargo, N.A.,
208 So. 3d 259, 260 (Fla. 3d DCA 2016) (“Any
difference between the terms final ‘judgment,’ final ‘decree,’ and final ‘order’
disappeared long ago, at least for procedural purposes.”).
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Against these principles, we examine the case at hand. The notice of
inactivity and order of dismissal both reflected they were mailed to the parties
and counsel of record. Thus, the trial court correctly found the clerk was
presumed to have properly discharged its duties and forwarded the
document to both Metropolitan Mortgage and its counsel. See Purdue, 259
So. 3d at 923; Scott v. Johnson,
386 So. 2d 67, 69 (Fla. 3d DCA 1980).
Indeed, “[t]o do otherwise . . . would amount to an imputation of fraud against
the Clerk.” Wells v. Thomas,
78 So. 2d 378, 384 (Fla. 1954).
This does not, however, end our analysis. Metropolitan Mortgage
presented evidence that neither the client nor the attorneys received the
documents. While a bare denial of receipt has generally been deemed
insufficient to overcome the presumption of notice, see Scott,
386 So. 2d at
69, in this case, lead counsel testified that his internal system was devoid of
the notice or order of dismissal, see Taylor v. Taylor,
67 So. 3d 359, 362
(Fla. 4th DCA 2011). Further, Shutts & Bowen was purportedly not entered
by the clerk as the firm of record on the docket, and the notice of inactivity
specifically indicated the address for the client was unknown. Under these
circumstances, Metropolitan Mortgage adequately rebutted the presumption
of notice. See Roberts v. Lando,
652 So. 2d 1226, 1227 (Fla. 3d DCA 1995)
(finding defendant rebutted the presumption by presenting evidence in the
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form of sworn testimony from counsel and bondsperson that they did not
receive notice from the clerk); Abrams v. Paul,
453 So. 2d 826, 828 (Fla. 1st
DCA 1984) (“The presumption raised by the certificate of service is clearly
not conclusive. Neither is a sworn denial of receipt either sufficient or
insufficient as a matter of law in rebuttal of the presumption . . . . The dictum
in Scott should not, in light of the cited authorities, be taken to mean that a
sworn denial of receipt is insufficient as a matter of law to overcome the
rebuttable presumption.”); Baxter v. Baxter,
684 So. 2d 886, 888 (Fla. 5th
DCA 1996) (“[S]worn testimony rebuts the presumption created by the
Certificate of Service and creates a fact issue . . . .”); Taylor,
67 So. 3d at
362 (holding appellant’s sworn statements established he did not receive
proper notice when appellee did not rebut that evidence with any sworn
statements).
Accordingly, the record establishes the order of dismissal is void as
violative of due process, and Metropolitan Mortgage was entitled to relief in
the trial court. See Falkner,
489 So. 2d at 759. We therefore reverse and
remand for reinstatement of suit.
Reversed and remanded.
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