MARIA P. ALBO

v.

CARLOS MARTELL, ET AL.

Third District Court of Appeal State of Florida

Opinion filed July 17, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1379 Lower Tribunal No. 19-23969 ________________

Maria P. Albo, Appellant,

vs.

Carlos Martell, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Hiller Law, P.A., and Douglas C. Hiller, for appellant.

Rhonda F. Goodman, P.A., and Rhonda F. Goodman, for appellees Barbara Sanjurjo, P.A., and Barbara Sanjurjo; Lazaro J. Lopez, for appellees Carlos Martell, Sandra Martell, and Martell, Inc.

Before EMAS, FERNANDEZ and MILLER, JJ.

EMAS, J.

2

INTRODUCTION

Maria P. Albo appeals from the trial court’s denial of her motion to vacate the trial court’s sua sponte order dismissing her lawsuit. We hold that because the dismissal order was entered without notice and an opportunity to be heard, that order was void and the trial court erred in denying Albo’s motion to vacate that void dismissal order. We reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

In August 2019, Maria Albo (plaintiff below) filed suit against Carlos Martell and his company, Martell, Inc. Prior to effectuating service upon Carlos and Martell, Inc., Albo amended her complaint, adding as partydefendants Albo’s former attorney, Barbara Sanjurjo, and Sanjurjo’s law firm, the Law Offices of Barbara Sanjurjo, P.A. (collectively, referred to as “Sanjurjo”). Albo also added Carlos Martell’s wife, Sandra Martell, as a defendant to the amended complaint. (Carlos Martell, Sandra Martell and Martell Inc. are collectively referred to as “the Martells.”) Thereafter, Albo successfully served Sanjurjo, and purportedly served the Martells at an address in Miami Beach. In June 2020, the Martells moved to quash service of process. A year later, in June 2021, the trial court

The order dismissed the entire action without prejudice,1 including those claims filed against Barbara Sanjurjo and Sanjurjo’s law firm, even

1 The “without prejudice” dismissal is a reference to Florida Rule of Civil Procedure 1.070(j), which, under certain circumstances, authorizes a trial court to “dismiss the action without prejudice.” See discussion infra at 8-9. It is clear from the context that the order, though entered “without prejudice,” dismissed the entire action, requiring Albo to file a new case, and is therefore appealable as a final order. See U.S. Bank Nat.’l Ass’n v. Rodriguez, 206

So. 3d 734, 736 (Fla. 3d DCA 2016) (“If a dismissal is ‘without prejudice’ but it is clear from the context of the record that the plaintiff's right to pursue the case requires the filing of a new case, the order is final.” (citing Fed. Nat'l Mortg. Ass'n v. Wild, 164 So. 3d 94, 95 (Fla. 3d DCA 2015); Al–Hakim v. Big Lots Stores, Inc., 161 So. 3d 568, 569 (Fla. 2d DCA 2014); Gerber v. Vincent's Men's Hairstyling, Inc., 57 So. 3d 935, 937 (Fla. 4th DCA 2011); Hollingsworth v. Brown, 788 So. 2d 1078, 1079 n.1 (Fla. 1st DCA 2001)).

2 The Martells do not controvert this averment in the affidavit of Albo’s counsel and the record on appeal does not contain any pleading or evidence disputing the veracity of this allegation. Sanjurjo contends on appeal that “Albo’s counsel presented no evidence that the email had not been received at his designated email address,” nor “any evidence to establish that the trial court and/or court personnel contributed in any way to Albo’s claim that the February¹⁰, 2022 order was not delivered to excuse the¹⁰ month delay in seeking relief.,” nor does the record on appeal contain any pleading or motion disputing the veracity of this allegation.³ Albo appealed both the June 29th order (denying her motion to vacate the February¹⁰ dismissal order) as well as the February 10th dismissal order

6

STANDARD OF REVIEW

Ordinarily, we review a trial court’s order denying a motion to set aside or vacate a final order of dismissal for an abuse of discretion. See First Call 24/7, Inc. v. Rios, 373 So. 3d 1176 (Fla. 3d DCA 2022). However, where the “motion to vacate depends upon whether the underlying order is void, the determination is a legal question that is reviewed de novo.” Id. at 1178. Further, and as we observed in Nationstar Mortg, LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017): “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.” (quoting 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) (holding that the trial court must vacate a void judgment).

ANALYSIS AND DISCUSSION

“‘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.’” Metro. Mortg. Co. of Miami, v. Rose, 353 So. 3d 1230, 1233 (Fla. 3d DCA 2022) (emphasis

itself. This court dismissed, as untimely, the appeal of the February 10th dismissal order.

The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.

(emphasis added). See also Coral Gables Imports, Inc. v. Suarez, 219 So. 3d 101, 103 (Fla. 3d DCA 2017) (acknowledging that a void order is not

(emphasis added). Ordinarily, if service of the initial process and initial pleading is not made upon a defendant within 120 days, and a showing of good cause or excusable neglect is not made, the trial court has the discretion to (1) direct that service be effectuated within a specified time; (2) drop that defendant as

CONCLUSION

Because the trial court entered the sua sponte dismissal order without notice and an opportunity to be heard, that order was void and the trial court erred in denying Albo’s motion to vacate, which was filed within a reasonable time following dismissal. We reverse the order denying the motion to vacate and remand for further proceedings consistent with this opinion.