Void Judgments and Voidable Judgments in Florida — Gulisano Law, PLLC (2024)

There are circ*mstances that might render a final judgment “void” and there are circ*mstances that might render a final judgment “voidable.” In such cases, the affected defendant may be able to challenge the validity of the final judgment. While the concepts are somewhat similar, the differences between them have serious and significant legal implications.

In Florida, a “void judgment” is so defective that it is deemed never to have had legal force and effect, while 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).

As the Florida Supreme Court has noted:

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.

Veigle v. St. Cloud Marine, Inc., 818 So. 2d 695, 696 (Fla. 5th DCA 2002), (emphasis added) (quoting State ex rel. Gore v. Chillingworth, 171 So. 649, 652 (Fla. 1936)).

What this means in layman’s terms is that a void judgment is inherently defective and of no legal significance. Therefore, everything that follows a void judgment is invalid since it is based on a judgment which is of no legal effect. A voidable judgment, however, is in fact legitimate and of legal significance until the moment that it is determined to be voidable. This means that any action taken subsequent to the entry of the judgment is not inherently illegitimate, since the judgment is valid until it is determined voidable. For many, this can seem like a distinction without a meaningful difference. However there are serious implications to whether a judgment is void or whether it is voidable.

Void and Voidable Judgments in Practice

Judgments entered by default are the most likely suspects for being either void or voidable. A defendant is required by law to respond to a plaintiff’s complaint within 20 days of being served with the complaint. Fla. R. Civ. P. 1.140(a)(1). If the defendant fails to timely file or serve a response, the plaintiff may have the clerk enter a default against the defendant. Fla. R. Civ. P. 1.500(a). After a defendant is defaulted, the plaintiff can seek to have a final judgment entered. Id. at (e).

It is not unheard of for some litigants to cut corners at the expense of strict compliance with due process procedural requirements resulting in void or voidable judgments that may go unchallenged for years. If recognized and utilized properly, a motion to vacate a void judgment may provide significant relief for a judgment debtor who has had their due process rights violated. Conversely, if timely recognized and utilized properly, a motion to vacate a voidable judgment may provide more limited but still significant relief.

Void Judgments

There are numerous reasons that a final judgment which has been entered in Florida may in fact be void as a matter of law. The three most common reasons include:

Lack of personal jurisdiction, which occurs when the court that entered the judgment did not properly have jurisdiction over the defendant. See Sterling Factors Corp., 968 So. 2d at 665 (“[A] judgment that is entered against a defendant when the court has no personal jurisdiction over the defendant is generally regarded as a void judgment.”).

Lack of subject matter jurisdiction, which occurs when the court that entered the judgment did not have the authority to hear the plaintiff’s claims. See Sterling Factors Corp., 968 So. 2d at 665 (“A trial court’s lack of subject-matter jurisdiction makes its judgment void.”).

Violation of the defendant’s due process rights to notice and an opportunity to be heard. See Torres v. One Stop Maint. & Mgmt., Inc., 178 So. 3d 86, 89 (Fla. 4th DCA 2015) (“A judgment entered without such notice and opportunity to be heard is void.”).

Similarly, the failure to abide by and strictly follow procedural requirement related to due process. See Green Solutions Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696 (Fla. 5th DCA 2002) (A default entered by the clerk after a written paper is served but not filed is void).

Voidable Judgments

Some of the reasons that a judgment may be voidable include:

Failure to state a cause of action, which occurs when the plaintiff asserts claims that even if accepted as true, do not form the basis for a legal claim. See Bank of N.Y. Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So. 3d 282, 286 (Fla. 2015) (“[A] default judgment is voidable, rather than void, when the complaint upon which the judgment is based fails to state a cause of action.”).

Failure to observe procedural processes, unless related to due process. See Bank of N.Y. Mellon, 175 So. 3d at 285 (“It is well settled that where a court is legally organized and has jurisdiction of the subject matter and the adverse parties are given the opportunity to be heard, then errors, irregularities or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.”).

For example, a plaintiff might serve the defendant with notice of a lawsuit but misspells the defendant’s name in pleadings. In such cases, the defendant’s due process rights were not violated because they received notice of the lawsuit even if the notice was defective or irregular. See Veigle, 818 So. 2d at 696 (“[A] service which is irregular or defective but actually gives the defendant notice of the proceedings against him … confers jurisdiction upon the court … so that the judgment based upon it is voidable only and not void.”).

Deadlines and Requirements for Seeking Relief from Void and Voidable Judgments

Determining whether a judgment is void or voidable is important because Florida law provides specific timelines for seeking relief from a judgment which is voidable. Fla. R. Civ. P. 1.540(b). If a judgment is void, the affected party must bring the matter to the court’s attention within a “reasonable time.” Id. Since a void judgment has no legal effect, a challenge to a void judgment is proper at any time. Id. However, if a judgment is merely voidable, the affected party has 1 year from the date the judgment is entered to bring the matter to the court’s attention. Id.

For example, in Bank of N.Y. Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So. 3d 282, 286 (Fla. 2015), the Florida Supreme Court found that the judgment being challenged by the defendant was voidable not void. As a result, the defendant had 1 year to attack the judgment on that basis. Id. However, since the defendant waited one and one-half years before finally deciding to respond, the defendant’s challenge was untimely. Id. Consequently, the defendant was forced to accept the judgment. Id.

Determining whether a judgment is void or voidable is also important because it determines the proof the defendant will be required to show in order for the court to grant relief. Fla. R. Civ. P. 1.540(b). If a judgment is merely voidable, in addition to proving that, the defendant must show that it had a meritorious defense to the plaintiff’s claim, that there was excusable neglect for the defendant’s failure to timely respond to the plaintiff’s claim, and that the defendant exercised due diligence in moving to set aside the default. However, if a judgment is void, the defendant is not required to make any showing other than the fact that the judgment is void.

Conclusion

Even if a judgment has been entered against you, there might be options available to fight it. If you have a judgment entered against you in Florida, especially if it was entered by default, contact Gulisano Law to see if there is anything we can do to help you resolve your situation utilizing our litigation experience throughout Florida.