Kozinski v. Phillips

Summary

The Florida Fourth District Court of Appeal held that defective service of process, where the defendant received actual notice of the litigation, rendered the resulting default judgment voidable rather than void. Because the defendant moved to vacate the judgment more than one year after its entry, the motion was untimely. The court also held that the plaintiff was not required to file the original promissory note because the action was based on a fee agreement rather than the note.

Holdings

1. Defective service of process that gives the defendant actual notice of the proceedings renders a judgment voidable, not void; therefore, a motion to vacate under Florida Rule of Civil Procedure 1.540(b) had to be filed within one year after entry of judgment.
2. The judgment was not void because Kozinski sued under the fee agreement rather than the promissory note and therefore was not required to attach or file the original note before entry of judgment.

Questions Presented

1. Whether defective but notice-producing service of process rendered the default judgment void or merely voidable, such that the one-year limitation for seeking relief under Florida Rule of Civil Procedure 1.540(b) applied.
2. Whether the judgment was void because Kozinski failed to attach or file the original promissory note before entry of final judgment.

Disposition

reversed_and_remanded