DAVID SLOAN, APPELLANT,
v.
FREEDOM SAVINGS & LOAN ASSOCIATION, APPELLEE
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The court held that attorneys' fees and costs, as well as liquidated or unliquidated damages, can be awarded by summary judgment.
This case involves an appeal from a summary judgment in a promissory note guaranty case. The court uses this case to clarify a previous ruling.…
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DAUKSCH, Judge.
This is an appeal from a summary judgment in a promissory note guaranty case.
We affirm the summary judgment and take this opportunity to rectify a situation we created in Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987). In Lauxmont, we said:
Although a default judgment can be entered to establish liability a trial is necessary to establish unliquidated damages. Therefore, the award of unliquidated compensatory damages by summary judgment in this case was error [citations omitted].
* * * * * *
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.
Id. at 1134.
We are advised that this Lauxmont opinion has been taken to mean that attorneys fees and costs cannot be determined and awarded by summary judgment. This interpretation is reasonable because we said "... the award of unliquidated compensatory damages by summary judgment ” is error. We should have said (and this author protests he meant to say!) “the award of unliquidated damages by default” is error.1
So, any claim for damages, liquidated or unliquidated, or for attorneys fees and costs can be decided by summary judgment. Unliquidated damages cannot be awarded after default without notice to the defendant of the hearing or trial where the damages are to be assessed and awarded. Bowman v. Kingsland Development, Inc., 432 So. 2d 660 (Fla. 5th DCA 1983). Appellate judges are wont to decorate some of their opinions with Latin phrases. The appropriate one for this occasion is mea culpa.
AFFIRMED.
COBB and COWART, JJ., concur. . Unliquidated damages are those which cannot be mathematically determined and are not specified in the defaulted pleading.
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Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148 (Fla. 4th DCA 2006)…m a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Pierce v. Anglin, 721 So. 2d 781, 783 (Fla. 1st DCA 1998) (quoting Bowman, 432 So. 2d at 662); Sloan v. Freedom Sav. & Loan Ass’n, 525 So. 2d 1000, 1001 n. 1 (Fla. 5th DCA 1988). Actions for sums directly due on negotiable instruments are for liquidated damages, since every negotiable instrument must be an “unconditional promise or order to pay a certain sum in money.” See Bowman, 432 So. 2d a…
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Previewing 3 of 5 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)
- Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987)
- Garamone v. A.M. Chudnow, 514 So. 2d 1133 (Fla. 5th DCA 1987)