ANNE ANSEL AND ALVIN ROBINS, APPELLANTS,
v.
CRAIG A. KIZER AND DEBRA V. KIZER, APPELLEES
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The court held that a final judgment entered without a jury trial on damages, despite a prior jury demand, is improper.
[1] A default judgment entered without notice to a party or their attorney may be void and subject to vacation.
[2] Where a plaintiff has demanded a jury trial, a defendant is entitled to a jury trial on the issue of damages even after a default has been entered against the defendant.
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Join FLexlaw to unlock all legal intelligenceAppellees sued appellants' company for damages arising from a false warranty deed. A default judgment was entered against some defendants, and a final…
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BOARDMAN, Acting Chief Judge.
Appellees Craig and Debra Kizer sued Land Services, Inc. and five individuals alleged to be its officers and directors, including appellants Anne Ansel and Alvin Robins, for damages arising out of the foreclosure by third parties upon property sold to the Kizers by Land Services by means of a false warranty deed. The complaint demanded a jury trial.
No answer was filed by Land Services, either of appellants, or one of the other individual defendants, and appellees obtained a default judgment against them. Later, based on appellees’ motion for final judgment and their affidavit in support thereof, the trial court entered final judgment against these defendants in the amount of $9442.91.
A few weeks later, pursuant to Florida Rule of Civil Procedure 1.540, appellants moved to vacate the final judgment, alleging that the final judgment was void because it was entered without notice to appellants or their attorney. The trial court denied the motion to vacate, and this appeal followed timely.
Appellants argue on appeal that entry of the final judgment upon appellees’ motion and affidavit was improper due to appel-lees’ demand for jury trial, which was not withdrawn by consent of all parties. We agree. It is well settled that where a plaintiff has made a demand for jury trial, the defendant is entitled to a jury trial on the issue of damages even though a default has been previously entered against the defendant for failure to answer or otherwise plead. Fla.R.Civ.P. 1.430; Loiselle v. Gladfelter, 160 So. 2d 740 (Fla. 3d DCA), cert. discharged, 165 So. 2d 767 (Fla.1964); Bader Bros. Van Lines, Inc. v. Jay, 183 So. 2d 867 (Fla. 2d DCA 1966); Saunders v. Saunders, 346 So. 2d 1057 (Fla. 1st DCA 1977). Despite appellees’ contention on appeal that their damages were liquidated, there is nothing in the record to support this assertion.
We find no merit to the other point raised by appellants.
Accordingly, the final judgment is REVERSED and the cause REMANDED for jury trial on the issue of compensatory damages.
SCHEB and SCHOONOVER, JJ., concur.
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Arnaldo Curbelo, M.D. v. Ullman, 571 So. 2d 443 (Fla. 1990)…EHRLICH, Justice. We review Ullman v. Curbelo, 550 So. 2d 1178 (Fla. 3d DCA 1989), because of conflict with Saunders v. Saunders, 346 So. 2d 1057 (Fla. 1st DCA 1977), and Ansel v. Kizer, 428 So. 2d 671 (Fla. 2d DCA 1982). We have jurisdiction, article V, Section 3(b)(3), Florida Constitution, and approve the decision below. [*444] This case involves the question of whether Florida Rule of Civil Procedure 1.540 1 is a proper vehicle to set aside a…
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)…erest or share according to the agreement. As such, we conclude that, the damages under the second amended complaint are unliqui-dated. Because the damages 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…
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Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Loiselle v. Flossie L. Gladfelter and Kenneth Gladfelter, 160 So. 2d 740 (Fla. 3d DCA 1964)
- Bader Bros. VAN Lines, Inc. v. Sy JAY, 183 So. 2d 867 (Fla. 2d DCA 1966)
- Saunders v. Saunders, 346 So. 2d 1057 (Fla. 1st DCA 1977)
- Flossie L. Gladfelter and Kenneth Gladfelter v. Loiselle, 165 So. 2d 767 (Fla. 1964)
- Jones v. Ludman Corp., 165 So. 2d 767 (Fla. 1964)