AIR UNLIMITED INC., APPELLANT,
v.
VOLARE AIR, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that a defaulted defendant is entitled to notice of a damages trial and that a plaintiff cannot waive a jury trial without notice to the defendant. The denial of the motion to vacate the default judgment was affirmed, but the final judgment awarding damages was reversed.
Plaintiff obtained a default judgment against the defendant, followed by a bench trial awarding compensatory and punitive damages. The defendant moved…
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BARKDULL, Judge.
The appellee, as plaintiff, filed an action seeking damages against the appellant. The complaint sought compensatory damages, both liquidated and unliquidated, as well as punitive damages and demanded a trial by jury.
A default judgment was entered against the defendant for failure to plead, followed by a bench trial, resulting in a final judgment in favor of the appellee for $14,009.20 as a compensatory loss and $42,000.00 as punitive damages.
Thereafter the appellant moved to vacate both the default judgment and the final judgment contending that he was not properly served and that he received no notice of hearing on the trial to determine damages. The trial judge denied this motion and this appeal ensued. We affirm the denial of the motion to vacate the default. Gettys v. Browning, 417 So. 2d 1094 (Fla. 3d DCA 1982); T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So. 2d 697 (Fla. 3d DCA 1981); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980); Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977).
We reverse the final judgment awarding damages for two reasons. First, the plaintiff could not waive the demand for jury trial without notice to the defendant, even though he was in default, Jayre Incorporated v. Wachovia Bank and Trust Co., N.A., 420 So. 2d 937 (Fla. 3d DCA 1982): second, even a defaulted defendant is entitled to service of an order setting a trial to determine unliquidated damages, Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., supra, Florida Rule of Civil Procedure 1.440(c).
Therefore the entry of default judgment is affirmed, the final judgment is reversed and the matter is returned to the trial court for further proceedings.
Affirmed in part, reversed in part, with directions.
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Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)…440(c); Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987); Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987); Bowman v. Kingsland Development, Inc, 432 So. 2d 660 (Fla. 5th DCA 1983); Air Unlimited, Inc. v. Volare Air, Inc., 428 So. 2d 294 (Fla. 3d DCA 1983).5 Accordingly, the order denying the motion for relief from judgment is reversed, the default entered by the clerk and the final judgment entered pursuant thereto are vacated, and the cause is remanded for further proceedings not…
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)…es are unliqui-dated, Szucs is entitled to a trial on the issue of damages. See Ansel v. Kizer, 428 So. 2d 671 (Fla. 2d DCA 1982); Employee Benefit Claims, Inc. v. Diaz, 478 So. 2d 379, 379 (Fla. 3d DCA 1985); Air Unlimited Inc. v. Volare Air, Inc., 428 So. 2d 294, 294-95 (Fla. 3d DCA 1983). We disagree with Szucs’ argument that he is entitled to a trial by jury. However, because the plaintiffs did not demand a jury trial, the matter - may be tried by the court. Cf. Holiday Gulf Builders, Inc. v. Tahitian Gar…
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Powers v. Gentile, 662 So. 2d 374 (Fla. 5th DCA 1995)…proper default, it is necessary to establish the amount of unliqui-dated damages by the taking of testimony. Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989); Air Unlimited, Inc. v. Volare Air, Inc., 428 So. 2d 294 (Fla. 3d DCA 1983). Absent the entry of a default after appropriate notice, or a trial after appropriate notice and the taking of testimony and evidence, this judgment cannot stand. Turner Properties, Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- T.I.E. Commc'ns, Inc. v. Toyota Motors Ctr., Inc., 391 So. 2d 697 (Fla. 3d DCA 1980)
- Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)
- Perry v. Univ. Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977)
- Jayre Inc. & Hilliard Herzog v. Wachovia Bank & Tr. Co., N.A., 420 So. 2d 937 (Fla. 3d DCA 1982)
- Manley E. Gettys v. Browning, 417 So. 2d 1094 (Fla. 3d DCA 1982)