GREINER ENGINEERING SCIENCES, INC., APPELLANT,
v.
COMMERCIAL CENTER DEVELOPMENT CORPORATION, ET AL., APPELLEES
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The court held that the trial court erred in granting a new trial on all issues because the defendants admitted liability by failing to respond to requests for admissions, but correctly granted a new trial on attorney's fees due to lack of notice.
Plaintiff Greiner Engineering Services, Inc. obtained a default judgment against defendants Commercial Center Development Corporation and The Market P…
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COBB, Judge.
Greiner Engineering Services, Inc., appeals an order granting a new trial to appellees/defendants below, Commercial Center Development Corporation and The Market Place at Daytona, Inc., based on the trial court’s determination that the defendants were not provided with due process notice and an opportunity to be heard. The lack of opportunity came about when the defendants failed to appear at the trial, which resulted in a judgment for the plaintiff for $47,360.00, plus interest, costs and $6,187.50 in attorney’s fees pursuant to section 57.105, Florida Statutes (1985).
The trial court ruled incorrectly in ordering a new trial on the entire cause, since the defendants admitted all the points at issue in the trial by failing to respond to the plaintiff’s request for admissions. See Fla.R.Civ.P. 1.370(a). Those matters admitted are conclusively established for the purposes of this action. Fla.R.Civ.P. 1.370(b).
The trial court’s award of attorney’s fees, however, was not pled prior to trial and was not included in the request for admissions.1 The defendants had no notice of this unliquidated claim, and, thus, were denied their due process right to be heard. See Bowman v. Kingsland Development, Inc., 432 So. 2d 660 (Fla. 5th DCA 1983). Accordingly, the trial court’s order granting a new trial is reversed, with the exception of the grant of a new trial on the issue of attorney’s fees.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
ORFINGER and COWART, JJ., concur. . While it is better practice to plead attorney’s fees, a party is not required to plead them where they are allowed by statute. Ocala Music & Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980). See also Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987).
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Citator
Cited By
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Millard v. Brannan, 553 So. 2d 1248 (Fla. 2d DCA 1989)…ld that generally it is necessary to request attorney’s fees in the pleadings when claiming under a contract, but it is unnecessary to plead entitlement when claiming fees under a statute. Greiner Eng’g Sciences, Inc. v. Commercial Center Dev. Corp.,508 So. 2d 525, 526 n. 1 (Fla. 5th DCA 1987); Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of Eastern Fla., 498 So. 2d 1346 (Fla. 5th DCA 1986); Brown v. Gardens by the Sea South Condominium Ass’n, 424 So. 2d 181 (Fla. 4th DCA 1983). This court until recen…
Authorities Cited
- Flagship Nat'l Bank OF Miami v. Gray Distrib. Sys., Inc., 432 So. 2d 660 (Fla. 3d DCA 1983)
- Ocala Music & Marine Ctr. v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980)
- Xanadu OF Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987)