RAY E. BUFFINGTON, APPELLANT,
v.
STEVE TORCISE AND SOUTH DADE REALTY, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Buffington appeals from a trial court order striking his complaint, dismissing his lis pendens, and entering a default judgment against him for $44,555.50 on counterclaims. The Florida appellate court affirmed the striking of pleadings and default entry, but reversed the final default judgment amount because the trial court failed to hold a hearing to determine actual damages on unliquidated claims.
The trial court properly exercised its discretion in striking the complaint, dismissing the lis pendens, and entering a default against Buffington. However, the trial court erred in entering a final default judgment without holding a hearing to determine actual damages, because Torcise's damages were unliquidated and could not be based on a liquidated damages clause in a contract the court had determined to be invalid.
[1] A trial court does not abuse its discretion by striking a party's pleadings, dismissing a lis pendens, or entering a default against a party for discovery violations.
[2] A trial court errs in entering a final default judgment for unliquidated damages without holding a hearing to determine the actual damages suffered.
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Join FLexlaw to unlock all legal intelligence“the trial court erred in entering a final default judgment without holding a hearing to determine the actual damages Torcise suffered”
Establishes the core error: failure to hold a damages hearing when unliquidated damages are at issue
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Join FLexlaw to unlock all legal intelligenceBuffington filed suit against Torcise and South Dade Realty involving a lease-option contract. Torcise filed counterclaims and rejected the validity o…
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PER CURIAM.
Buffington appeals from the trial court’s order striking his complaint, dismissing his lis pendens, and entering a default against him on Torcise’s counterclaims and from the entry of a default judgment for Torcise in the amount of $44,555.50. We find the appellant’s contentions, as they relate to the entry of the court order, to be without merit. Since the trial court did not abuse its discretion in striking Buffington’s pleadings, Fla.R.Civ.P. 1.380(d); see Mercer v. Raine, 443 So. 2d 944 (Fla.1983); cf. Wallraff v. T.G.I. Fridays, Inc., 490 So. 2d 50 (Fla.1986) (trial court may impose discovery sanction without violation of direct court order), dismissing the lis pendens, see § 48.23(3), Fla.Stat. (1985), or in entering a default against Buffington, see Fla.R. Civ.P. 1.500, we affirm the order under review.
We find merit, however, in Buff-ington’s contention that the trial court erred in entering a final default judgment without holding a hearing to determine the actual damages Torcise suffered. Torcise, by the very nature of his claims, rejected the existence of a valid contract. Furthermore, though Buffington was deemed to have admitted all of the information in Torcise’s requests for admission as a result of Buffington’s failure to reply, see Fla.R. Civ.P. 1.370(a), those requests did not pertain to the validity of the contract. Finally, the trial court’s order dismissing the lis pendens and its entry of a judgment for Torcise on his counterclaims was tantamount to a holding that the lease-option contract was invalid. Therefore, the trial court erred in awarding damages based upon the liquidated damage clause within that invalid contract.
The amount of damages suffered by Tor-cise were not otherwise determinable based upon “an arithmetical calculation or by application of definite rules of law” and were, therefore, unliquidated. Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA 1983). When a claim involves unliquidated damages “[a] defaulting party has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of [those] damages.” Bowman, 432 So. 2d at 663; Fla.R.Civ.P. 1.440(c); see also L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980). Consequently, the trial court erred in entering a final default judgment without first holding a hearing and allowing Buffington to present evidence on the issue of damages.
Accordingly, we reverse the final default judgment and remand for a determination of actual damages 1; in all other respects, we affirm.
. South Dade Realty, a third-party defendant to the action below, was voluntarily dismissed with prejudice by stipulation of the parties. That dismissal has not been appealed and is unaffected by our decision.
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Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)…urity to enter the final judgment. Therefore, the damages requested by the motion for final judgment were not liquidated within the meaning of rule 1.440(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 reverse…
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Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. 3d DCA 2007)…ror.” Security Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So. 2d 795, 800 (Fla. 3d DCA 1996), approved, 698 So. 2d 254, 256 (Fla.1997); see also, Williams v. Direct Dispensing, Inc., 630 So. 2d 1195 (Fla. 3d DCA 1994); Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987). Contrary to GH Cellular’s assertion, the relevant notice to which Cellular Warehouse was entitled was notice and an opportunity to be heard before the entry of a default final judgment that awarded unliquidated damages. Indeed,…
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…Id. at 662-63 (emphasis in original, citations omitted)4; see also Tand v. C.F.S. Bakeries, Inc., 559 So. 2d 670, 671 (Fla. 3d DCA 1990); Gulf Maintenance & Supply, Inc.v. Barnett Bank, 543 So. 2d 813, 818 (Fla. 1st DCA 1989); Buffington v. Torcise, 504 So. 2d 490, 491 (Fla. 3d DCA 1987); 33 Fla.Jur.2d Judgments and Decrees § 275 (1994). The setting of unliquidated damages without the required notice and without proof is regarded as fundamental error. Bowman, 432 So. 2d at 663-64. What, then, was the proper…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Flagship Nat'l Bank OF Miami v. Gray Distrib. Sys., Inc., 432 So. 2d 660 (Fla. 3d DCA 1983)
- B/G Amusements, Inc. v. Mystery FUN House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980)
- Wallraff v. T.G.I. Friday's, Inc., 490 So. 2d 50 (Fla. 1986)
- Herman v. Herman, 429 So. 2d 88 (Fla. 5th DCA 1983)
- L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983)