Decker v. Kaplus

In Decker v. Kaplus, 763 So.2d 1229 (Fla. 5th DCA 2000), the Fifth District Court of Appeal, in affirming an order refusing to set aside a two and one-half year old judgment entered against the defendants after default, addressed a similar issue. There, the Deckers had contended that, because the service of process on them was defective, the default judgment was void as a matter of law. The Fifth District disagreed: Although the service upon the Deckers was defective because the process server was not qualified under the former version of section 48.27 or section 48.021(3), Florida Statutes (1996), it was not void. In State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936), the supreme court explained: A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attacked. See also Nussbaum v. Cooke, 709 So.2d 621 (Fla. 4th DCA 1998); Paleias v. Wang, 632 So.2d 1132 (Fla. 4th DCA 1994) (Klein, J., concurring specially). The Deckers' service was irregular, but conveyed actual notice of the lawsuit against them. The final judgment was rendered voidable by the irregular process but not void. See, e.g., Cohen v. Drucker, 677 So.2d 953 (Fla. 4th DCA 1996). In order to attack the voidable judgment, the Deckers had one year after the final judgment was entered to move to set aside the judgment pursuant to Florida Rule of Civil Procedure 1.540(b). See, e.g., Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). The Deckers failed to timely raise the issue of defective service of process and the trial court correctly denied their motion to vacate and set aside the final judgment. (763 So.2d at 1230.)