Third District Court of Appeal
State of Florida
Opinion filed March 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1586
Lower Tribunal No. 09-74098
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Lidia E. Contreras,
Appellant,
vs.
Nelson E. Mendez,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.
Sean P. O’Connor, for appellant.
Patino & Associates, and Karen J. Barnet-Backer, for appellee.
Before ROTHENBERG, LAGOA and SALTER, JJ.
PER CURIAM.
Lidia Contreras, plaintiff below, appeals a circuit court order vacating an
April 2013 order striking the defendant’s affirmative defenses and a May 2013
amended final judgment in favor of Contreras granting rescission of a quitclaim
deed. The amended final judgment expressly stated that it would “act as a duly
executed instrument of conveyance” transferring the defendant’s interest in the
subject residential property to Contreras. The order and amended final judgment
were entered following the withdrawal of the defendant’s counsel and the entry of
an order allowing the defendant time (a) to retain successor counsel or (b)
represent himself with service of subsequent papers at a designated residence.
The defendant, appellee Nelson Mendez, did not seek review of the order or
amended judgment, and took no action in the case for two years after the entry of
the amended final judgment. During that period he did not update the service
address in the court papers or request counsel for Contreras to copy him via email.
Following those years of inaction, in May 2015, Mendez retained counsel
and filed a motion seeking to vacate the 2013 order and amended final judgment
under Florida Rules of Civil Procedure 1.540(b)(3) (fraud, misrepresentation, or
other misconduct of an adverse party) and 1.540(b)(4) (void judgment or decree).
The trial court granted Mendez’s motion, and this appeal followed.
We reverse. The claim for relief under Rule 1.540(b)(3) was untimely, as
the rule specifies that such a motion must be brought within one year after entry of
the judgment or decree (the exception regarding fraudulent financial affidavits in
marital cases is inapplicable).
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The claim for relief under Rule 1.540(b)(4) is also unavailing, though such a
motion is timely if made within a “reasonable time.” The claim fails because the
order and amended judgment in question were not “void,” but were, at best, subject
to challenge as “voidable.” “Although the case law on the void/voidable
distinction could draw clearer lines, generally so long as a court has jurisdiction
over the subject matter and a party, a procedural defect occurring before the entry
of judgment does not render a judgment void.” Sterling Factors Corp. v. U.S.
Bank Nat’l Ass’n, 968 So. 2d 658 (Fla. 2d DCA 2007) (internal citation omitted).
In this case, it was undisputed that the trial court had jurisdiction over the
subject matter and over the defendant. Procedural defects such as the alleged
failure to receive pleadings (though addressed to the residence identified by
defendant’s initial counsel and never updated or corrected by the defendant) might
have been corrected through motions filed within the year applicable to claims for
relief under Rule 1.540(b)(1), (2), or (3), but Mendez filed no such motion.
Simply stated, this is not a case in which a judgment is void because the
defendant was never served with the initial summons and complaint. Rather, it is a
case in which the defendant initially appeared and defended, permitted his counsel
to withdraw, and then neglected to monitor the publicly-available docket or assure
that an address of record for service of papers was current and reliable. We have
repeatedly cautioned pro se parties that such behavior is fraught with peril. Wolff
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v. Piwko, 104 So. 3d 372 (Fla. 3d DCA 2012); Whitney v. A Aventura
Chiropractic Care Ctr., Inc., 21 So. 3d 95 (Fla. 3d DCA 2009).
Reversed and remanded for reinstatement of the amended final judgment.
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