LAUXMONT FARMS, INC., APPELLANT,
v.
JAMES P. FLAVIN AND ANN FLAVIN, HIS WIFE, APPELLEES
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The court held that awarding unliquidated damages without a trial, following a defective notice of trial, constitutes reversible error and violates due process.
[1] A default judgment may establish liability, but a trial is necessary to determine unliquidated damages.
[2] An award of unliquidated compensatory damages by summary judgment is error.
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Join FLexlaw to unlock all legal intelligenceThe trial court granted summary judgment for unliquidated damages and later awarded punitive damages and attorney's fees after a defective notice of n…
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DAUKSCH, Judge.
This is an appeal from a judgment which awarded unliquidated damages without trial. Although a default judgment can be entered to establish liability a trial is necessary to establish unliquidated damages. Bowman v. Kingsland Dev., Inc., 432 So. 2d 660 (Fla. 5th DCA 1983). Therefore, the award of unliquidated compensatory damages by summary judgment in this case was error. See Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987); Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980).
After the motion for summary judgment and compensatory damages were granted, the attorney for appellee sent a notice of nonjury trial to appellant. The notice was defective because the order was sent by the opposing attorney rather than the court and did not give the requisite thirty-days notice of trial. Fla.R.Civ.P. 1.440(c). Lauxmont Farms did not attend the nonjury trial in which the trial court awarded $1,600,000 in punitive damages and $6,400 in attorney’s fees and costs.
Strict compliance with Florida Rule of Civil Procedure 1.440 is required and failure to do so is reversible error. Ramos v. Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986); Bennett v. Continental Chemicals, Inc., 492 So. 2d 724 (Fla. 1st DCA 1984); see also Broussard v. Broussard, 506 So. 2d 463 (Fla. 2d DCA 1987). We have stated before that a party has a due process entitlement to notice and an opportunity to be heard on unliquidated damages pursuant to Florida Rule of Civil Procedure 1.440. Bowman v. Kingsland Development, Inc., 432 So. 2d at 663. Lauxmont Farms’ fundamental due process rights were violated by the defective notice of nonjury trial for both compensatory and punitive damages as well as attorneys fees and costs. Accordingly, the judgments for damages, attorney’s fees and costs are reversed and remanded for new trial after proper notice under Florida Rule of Civil Procedure 1.440. We find no merit in Lauxmont Farms’ other contentions on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.
ORFINGER and COBB, JJ., concur.
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Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)…it in support of the default final judgment in this case and conclude that the defendant’s damages were not liquidated. Plaintiff was thus entitled to notice and a hearing on the motion for default final judgment. In Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133, 1134 (Fla. 5th DCA 1987), the court held that the defendant’s fundamental due process rights were violated because the notice of trial on the unliquidated damages was sent by the opposing attorney rather than the court and, [*1096] further, did not…
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Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)…the advances, repayments, and recovery from the sale of security 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 o…
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Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148 (Fla. 4th DCA 2006)…tion and evaluation of evidence necessary to a judicial interpretation of the amount of unliq-uidated damages.” Asian Imports, Inc. v. Pepe, 633 So. 2d 551, 552 (Fla. 1st DCA 1994) (quoting Bowman, 432 So. 2d at 662); Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133, 1134-(Fla. 5th DCA 1987). “Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flagship Nat'l Bank OF Miami v. Gray Distrib. Sys., Inc., 432 So. 2d 660 (Fla. 3d DCA 1983)
- Rodger H. Bennett v. Cont'l Chems., Inc., 492 So. 2d 724 (Fla. 1st DCA 1986)
- B/G Amusements, Inc. v. Mystery FUN House, Inc., 381 So. 2d 318 (Fla. 5th DCA 1980)
- Turner v. Allen, 389 So. 2d 686 (Fla. 5th DCA 1980)
- Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987)
- Broussard v. Broussard, 506 So. 2d 463 (Fla. 2d DCA 1987)
- Ramos v. Ferol Menks, 509 So. 2d 1123 (Fla. 1st DCA 1986)