ERNEST H. CLUETT, II, AND MARY L. CLUETT, HUSBAND AND WIFE, APPELLANTS,
v.
DEANNA KRYSTYNIAK, APPELLEE
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The court held that the trial court erred in entering a default judgment against the appellants on the issue of liability solely due to their failure to appear at trial, absent prior evidence on liability.
Appellants failed to appear for trial after receiving notice. The trial court entered a default against them on liability and proceeded to a jury dete…
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HALL, Judge.
The appellants raise two points on appeal. The appellants contend that the trial court erred in entering a default against the appellants as to the issue of liability because of their failure to appear at trial of the case. We agree and, therefore, do not find it necessary to reach the second issue raised by the appellants.
The case was originally set for trial on August 4, 1987, but was reset for August 18, 1987. The appellants failed to appear for trial on that date. The trial court found, that the appellants had received due notice and that their failure to appear was intentional and, therefore, entered a default against them as to the issue of liability. A jury was then empaneled to determine the amount of damages. Evidence was presented by the appellee, and the jury returned a verdict in the amount requested by the appellee.
Although the trial court was not required to continue the cause because of the appellants’ failure to appear, Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967), it erred in entering a default judgment against the appellants where the pleadings set forth disputed issues as to liability and there was no evidence before the court prior to its determination of liability. Belcher v. Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987).
Accordingly, we reverse the judgment and remand for trial of the cause.
SCHEB, Acting C.J., and SCHOONOVER, J., concur.
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Citator
Cited By
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Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)…on the contested [*941] issues in the pleadings. We have found the entry of a default judgment under such circumstances to be an abuse of discretion. Turner Properties, Inc. v. Marchetta, 607 So. 2d 506, 507 (Fla. 3d DCA 1992); Cluett v. Krystyniak, 532 So. 2d 739, 739 (Fla. 2d DCA 1988) (deciding where appellants intentionally failed to appear at trial, trial court erred in entering default judgments where pleadings set forth disputed issues as to liability and there was no evidence of liability presented);…
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Turner Props., Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA 1992)…rance by defendants does not relieve the plaintiff of its obligation to introduce evidence on liability, and is not a basis for entry of a default. Delancer v. Advanced Mortgage Investment Co., 546 So. 2d 130 (Fla. 3d DCA1989); Cluett v. Krystyniak, 532 So. 2d 739 (Fla. 2d DCA1988); Belcher v. Ferrara, 511 So. 2d 1089 (Fla. 3d DCA), appeal after remand, 517 So. 2d 47 (Fla. 3d DCA1987), review denied, 528 So. 2d 1181 (Fla.1988); Stern v. Commercial Constr. Corp., 268 So. 2d 549, 550-51 (Fla. 3d DCA1972), cert.…
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Molina v. Watkins, 824 So. 2d 959 (Fla. 3d DCA 2002)…Turner Properties, Inc. v. Marchetta, 607 So. 2d 506, 507 (Fla. 3d DCA 1992) (non-appearance by defendants does not relieve plaintiff of its obligation to introduce evidence on liability, and is not basis for entry of default); Cluett v. Krystyniak, 532 So. 2d 739, 739 (Fla. 2d DCA 1988) (trial court erred in entering default judgment where the pleadings set forth disputed issues regarding liability and there was no evidence before court prior to its determination of liability); Ortiz-v. Nicolaides, 196 So. 2…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ortiz v. Nicolaides, 196 So. 2d 186 (Fla. 3d DCA 1967)
- Belcher v. Eileen and Charles Ferrara, 511 So. 2d 1089 (Fla. 3d DCA 1987)