Occasionally, a client seeks help after a default has been entered against it, and there may be no reasonable basis to vacate the default within the excusable neglect framework. In some cases not all hope is gone, there maybe another tool in the attorney’s toolbox. If the Complaint that serves as the predicate for the default judgment was not well-pled (does not state a cause of action) the judgment is void. Simply stated, you maybe able to attack the complaint after default in a similar manner as you could on a motion to dismiss. The Standard to Set Aside Final Default Judgment Predicated on Deficient Complaint A complaint that does not sufficiently state a cause of action for which relief can properly be granted, is void and not curable by a default judgment. Becerra v. Equity Imports, Inc., 551 So. 2d 486, 488 ( Fla. 3d. DCA 1989). In fact, the failure to state a cause of action, unlike formal or technical deficiencies, is a fatal pleading deficiency not curable by a default judgment. Id. Further, the reason why a pleading deficiency is not cured by a default judgment is that in such cases the introduction of proof is not required, and even if the allegations were accepted as true, the plaintiff would not have made a case upon which relief could be granted. Id. Since a defendant against whom a default is entered admits only the well pleaded facts and acquiesces only in the relief specifically prayed for, the award of relief not sought by the pleadings is error. Board of Regents v. Stinson-Head, Inc., 504 So. 2d 1374 (Fla. 4th DCA 1987) (emphasis added.). Simply put, in the case of defaults, the jurisdiction of the court can be exercised only within the scope of the pleadings. Id. Therefore, when a default is obtained upon a pleading that does not sufficiently set forth a cognizable action, the default judgment should be set aside. Sunshine Sec. & Detective Agency v. Wells Fargo Armored Servs. Corp., 496 So. 2d 246 (Fla. 3d DCA 1986); see also, Magnificent Twelve, Inc. v. Walker, 522 So.2d 1031 (Fla. 3d DCA 1988) (finding that a motion to set aside a default judgment requires no allegations or showing of excusable neglect where the basis for the motion is that the allegations in the complaint do not entitle the plaintiff to relief.)
Default judgments based on defective pleadings are voidable not void, and not subject to collateral attack under 1.540(b) at any time.
175 So.3d 282
The BANK OF NEW YORK MELLON, etc., Petitioner,
CONDOMINIUM ASSOCIATION OF LA MER ESTATES, INC., Respondent.
No. SC14–1049. Supreme Court of Florida. Sept. 17, 2015.
First, the Fourth District properly recognized that the modern rules of civil procedure, and particularly Florida Rule of Civil Procedure 1.540(b), do not displace this Court’s prior caselaw that defines a judgment that is void. See Curbelo, 571 So.2d 443; State ex rel. Coleman v. Williams, 147 Fla. 514, 3 So.2d 152 (1941); Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). Indeed, the purpose of rule 1.540(b) as recognized by this Court is to provide an exception to the rule of absolute finality by allowing relief under a limited set of circumstances. See Bane v. Bane, 775 So.2d 938, 941 (Fla.2000) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla.1986)).
Second, failure to state a cause of action is a specific defense recognized by Florida
Rules of Civil Procedure 1.140(b) and (h)(1) and (2). Rule 1.140(h) specifically provides in relevant part:
(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action … may be raised … at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply.
Fla. R. Civ. P. 1.140(h). If a party is properly notified of pending proceedings, that party has the opportunity to raise a defense, such as failure to state a cause of action, in an answer, at trial, or at any time prior to final judgment. Otherwise, that defense is deemed waived. Fla. R. Civ. P. 1.140(h)(1).
In Southeast Land Developers and Moynet, the subject complaints failed to state a cause of action. Se.
[175 So.3d 286]
Land Developers, 28 So.3d at 168; Moynet, 8 So.3d at 378. Relying on Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989), the First District in Southeast Land Developers and the Third District in Moynet declared the default judgments void and reversed the trial courts’ orders that denied the motions to set aside or vacate those judgments. Se. Land Developers, 28 So.3d at 168; Moynet, 8 So.3d at 378.
The Fourth District correctly noted that Becerra never explicitly states that a default judgment based on a complaint that fails to state a cause of action is void, La Mer Estates, 137 So.3d at 399, even though Southeast Land Developers and Moynet cited to Becerra for that precise principle. In addition, Southeast Land Developers and Moynet failed to demonstrate how rule 1.540(b) replaces this Court’s precedent that defines a judgment as void.
In the present case, BNY Mellon was properly notified of the proceedings, the hearing on final judgment, and the entry of the final judgment. Id. at 400. Indeed, BNY Mellon was twice notified of the default judgment and failed to respond or appear at any hearings. As such, the bank had ample opportunity to raise the failure to state a cause of action either in an answer or at any time prior to final judgment pursuant to the Florida Rules of Civil Procedure and did not do so. Thereafter, the bank “could have raised the issue on direct appeal,” but similarly elected not to do so. Id. at 401.
Thus, the Fourth District properly reversed the trial court’s order that rendered the default judgment in the present case void. Because we agree that the default judgment was voidable, Florida Rule of Civil Procedure 1.540(b) was not applicable, and therefore the default judgment could not be collaterally attacked one and one-half years later when BNY Mellon finally decided to respond. See Coleman, 3 So.2d at 152–53 (“We do not think the judgment in this case was void. The declaration had been upheld by the trial court and final judgment was entered on the verdict of the jury after due notice and every opportunity the law affords was given the defendants to amend, plead, or offer their defense. They did not appear and let the time pass in which writ of error is available to them.”).
Accordingly, we approve the Fourth District’s decision in La Mer Estates and disapprove Southeast Land Developers and Moynet to the extent that these cases are inconsistent with this decision.