TALLMAN POOLS OF GEORGIA, INC., A GEORGIA CORPORATION, APPELLANT,
v.
DOUGLAS C. WOOD, AND CAROLINE WOOD, APPELLEES
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A party against whom a default has been entered in an action for unliquidated damages is entitled to notice of an order setting the matter for trial and an opportunity to defend.
[1] A trial court may grant a motion to vacate a default judgment upon a showing of a meritorious defense and a legal excuse for noncompliance with rules.
[2] A party against whom a default has been entered in an action for unliquidated damages is entitled to notice of a trial or hearing on the issue of damages.
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Join FLexlaw to unlock all legal intelligenceAppellant suffered a default judgment for failing to file a responsive pleading after substituted service. The trial court denied appellant's motion t…
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellant, sued for unliquidated damages, suffered a default judgment for its failure to timely file a responsive pleading after being served through substituted service. Appellant’s motion to set aside the default was denied, whereupon the court, without a hearing on the amount of the unliquidated damages and based solely upon the affidavit of one of the appellees, entered a final money judgment for appellees.
Appellant’s first point, that the trial court erred in refusing to set aside the default, is without merit. A motion to vacate a default may be granted within the sound discretion of the trial court upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967). Appellant’s motion to vacate the default did not adequately meet either of these requirements.
Appellant’s second point, that the trial court erred in entering final judgment without notifying appellant of a trial or hearing on the question of unliquidated damages, has merit. A party against whom a default has been entered, where the action is one involving unliquidated damages, is entitled to notice of an order setting the matter for trial, and an opportunity to defend. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980). Here the trial court, after denying appellant’s motion to vacate the default judgment, immediately and without the matter having been noticed for trial on the issue of unliquidated damages, entered final judgment for appellees based solely upon a previously filed ex parte affidavit of one of the appellees.
The order denying appellant’s motion to vacate the default is affirmed. The final judgment for appellees is reversed and this cause remanded to the trial court for trial, after notice, on the issue of appellees’ damages.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
ERVIN, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.
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Citator
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Pierce v. Anglin, 721 So. 2d 781 (Fla. 1st DCA 1998)…Where an action involves unliquidated damages, a party against whom a default has been entered is entitled to notice of an order setting the matter for trial, and must be afforded an opportunity to defend. See Tallman Pools of Georgia, Inc. v. Wood, 399 So. 2d 112, 113 (Fla. 1st DCA 1981). In Tollman, the trial court denied the appellant’s motion to vacate the default judgment, then, without noticing the matter for trial on the issue of damages, the court entered judgment for appellees based solely upon a pre…
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Sunstream JET Ctr., Inc. v. Lisa Leasing Corp. & United States Fire Ins. Co., 423 So. 2d 1005 (Fla. 4th DCA 1982)…n for trial shall be served on parties who are in default in accordance with Rule 1.080(a). Fla.R.Civ.P. 1.440(c). Also see B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980); Tallman Pools of Georgia, Inc. v. Wood, 399 So. 2d 112 (Fla. 1st DCA 1981). Accordingly, we reverse and remand for further proceedings consistent with this opinion. REVERSED and REMANDED. BERANEK and HERSEY, JJ., concur.…
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Arranco Shoes BY Carmen, Inc. v. Calzados Milady, 422 So. 2d 341 (Fla. 3d DCA 1982)…t’s denial of appellant’s Motion to Set Aside Default and Default Judgment. We remand, however, for a new trial on the question of damages. Appellant was not afforded notice of trial on the issue of damages. Tallman Pools of Georgia, Inc. v. Wood, 399 So. 2d 112 (Fla. 1st DCA 1981); Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980); Fla.R.Civ.P. 1.440(c). Affirmed in part, reversed in part.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B/G Amusements, Inc. v. Mystery FUN House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980)
- Winter Park Arms, Inc. v. Akerman, 199 So. 2d 107 (Fla. 4th DCA 1967)