VALERIE COLE, APPELLANT,
v.
BLACKWELL, WALKER, GRAY, POWERS, FLICK & HOEHL, APPELLEE
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The court held that a former client's belief that she need not respond, based on partner's representation, constituted excusable neglect, and failure to provide notice of damages hearing violated due process.
A law firm sued a former client for attorney fees and obtained a default judgment without notice to the client. The client moved to set aside the judg…
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PER CURIAM.
Appellee Blackwell Walker sued Valerie Cole, a former client, to collect attorney fees for legal representation. When Cole failed to file a response to the complaint, a default was entered against her. The final judgment awarding damages to Blackwell Walker was entered without notice to Cole. Seeking to enforce the judgment by execution, Blackwell Walker directed the sheriff to sell Cole’s condominium. Cole’s motion to set aside the final judgment and motion to vacate order of sale were denied. We reverse.
To justify vacating a default, the moving party must demonstrate both excusable neglect and a meritorious defense. Fla.R.Civ.P. 1.540. Cole set forth a meritorious defense in her answer and affirmative defenses, filed in conjunction with the motion to set aside default, by disputing the terms of the oral agreement and denying any liability. Cole’s belief, based on representations made by one of the senior partners of the law firm, that she need not respond to the complaint constituted excusable neglect. Marine Outlet v. Miner, 469 So. 2d 251 (Fla.2nd DCA 1985); see also B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla.Sd DCA 1981).
Moreover, the failure to give Cole notice and to permit her an opportunity to be heard on the issue of damages was a denial of her right to due process. Fla.R. Civ.P. 1.440(c). The dispute between the parties involved the amount of attorney fees owed to the appellee pursuant to an oral agreement. Because a claim for reasonable attorney fees constitutes a claim for unliquidated damages, a hearing was required to fix the amount of damages and Cole was entitled to notice of that hearing. Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 664 (Fla.5th DCA 1983).
Accordingly, the order denying the motion to set aside the default is reversed. Because the order of sale was entered in an effort to execute on the default judgment, it is hereby vacated.
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Pierce v. Anglin, 721 So. 2d 781 (Fla. 1st DCA 1998)…unitive damages in the amount of $1,600,000, as well as attorney’s fees and costs. The judgments were reversed and remanded for new trial after proper notice pursuant to rule 1.440(c). See also Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So. 2d 725 (Fla. 3d DCA 1988). In summary, Florida Rule of Civil Procedure 1.440 was not strictly complied with in this case, and appellants have not waived their entitlement to a trial on the unliquidated damages matter. In light of the ruling in Bennett, we…
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Gables Club Marina, LLC v. The Gables Condo. & Club Ass'n, Inc., 948 So. 2d 21 (Fla. 3d DCA 2006)…ufficient to vacate a default and that a trial court abuses its discretion by failing to vacate a default entered in such a case. See Levante v. Corallo, 688 So. 2d 427, 428 (Fla. 3d DCA 1997); Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So. 2d 725, 725-26 (Fla. 3d DCA 1988); Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163, 1163-64 (Fla. 3d DCA 1982); Rubenstein v. Richard Fidlin Corp., 346 So. 2d 89, 90-91 (Fla. 3d DCA 1977); Weeks Cartage, Inc. v. CSX Transp., 547 So. 2d 237…
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Virgel Bennett v. Ward, 667 So. 2d 378 (Fla. 1st DCA 1995)…d to insure[,]” and no notice was received until more than thirty days had elapsed). See also Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989); Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So. 2d 725 (Fla. 3d DCA 1988); Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 663 (Fla. 5th DCA 1983). . Section 45.0315, Florida Statutes (1993), effective October 1, 1993, ch. 93-250, § 2, at 2467-68, Laws of Fla., (after the judicial sale in the present c…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- B. C. Builders Supply Co., Inc. v. Maldonado, 405 So. 2d 1345 (Fla. 3d DCA 1981)
- Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985)