SALLY DYSART, INDIVIDUALLY AND SALLY DYSART, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
AN ULTIMATE POOL SERVICE & REPAIR, INC., A FLORIDA CORPORATION, APPELLEE
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The court affirmed the trial court's finding that service of process was valid and the default judgment was proper, but reversed and remanded because the trial court erred in awarding unliquidated damages without notice and hearing as required by Florida Rule of Civil Procedure 1.440(c).
Service of process was valid and default was properly entered, but awarding unliquidated damages without notice and hearing violated Florida Rule of Civil Procedure 1.440(c).
[1] Unliquidated damages may not be awarded following a default judgment without notice and a hearing as required by Florida Rule of Civil Procedure 1.440(c).
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Join FLexlaw to unlock all legal intelligenceSally Dysart, individually and through her corporation, was sued by An Ultimate Pool Service & Repair, Inc. Dysart failed to file or serve any papers …
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PER CURIAM.
Sally Dysart, individually, and Sally Dy-sart, Inc., appeal from a court order denying their Motion to Set Aside Default and Relief from Final Judgment.
As to the appellants’ first issue on appeal — that the judgment is void because service of process was defective — we affirm the trial court’s ruling, made after a full evidentiary hearing, that service was valid. Although conflicting the evidence is sufficient to support the court’s finding. It was the appellants’ burden to establish by clear and convincing evidence that service was invalid. See Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985). Because the appellants failed to file or serve any papers a default on the issue of liability was properly entered. See American Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982).
Nevertheless, it was error for the trial court to award unliquidated damages, after the default was entered, without notice and a hearing in accordance with Florida Rule of Civil Procedure 1.440(c). Cole v. Blackwell, Walker, Gray, Powers, Flick & Hoehl, 523 So. 2d 725 (Fla. 3d DCA 1988); Lauxmont Farms, Inc. v. Zentner, 514 So. 2d 82 (Fla. 5th DCA 1987).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER CONSISTENT PROCEEDINGS.
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Aboudraah v. Tartus Grp., Inc., 795 So. 2d 79 (Fla. 5th DCA 2000)…ence upon discovery of the default. We affirm. After a default judgment has been entered, it is the defaulting party’s burden to establish by clear and convincing evidence that service was invalid. Dysart v. An Ultimate Pool Service & Repair, Inc., 536 So. 2d 387 (Fla. 3d DCA 1989). They failed to do so in this case. The process server’s affidavit reflects that he served Aboudraah by serving a “resident of the same household over the age of 15 by delivering a true copy and explaining the contents.... ” Aboud…
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DeLILLO v. Facel Vega, Inc., 541 So. 2d 173 (Fla. 4th DCA 1989)…illo is entitled to a trial as concerns the amount of damages since under the terms of the contract the damages were unliquidated. Cole v. Blackwell, Walker, Gray, 523 So. 2d 725 (Fla. 3d DCA 1988); Dysart v. An Ultimate Pool Service & Repair, Inc., 536 So. 2d 387 (Fla. 3d DCA 1989). We reverse on this account. Affirmed in part; reversed in part; and remanded. DOWNEY, LETTS and WALDEN, JJ., concur.…
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Williams v. Direct Dispensing, Inc., 630 So. 2d 1195 (Fla. 3d DCA 1994)…ule 1.440(c), Florida Rules of Civil Procedure. We agree. Although a default judgment can be entered to establish liability, a trial with proper notice is necessary to establish unliquidated damages. Dysart v. An Ultimate Pool Serv. & Repair, Inc., 536 So. 2d 387 (Fla. 3d DCA 1989); Lauxmont Farms, Inc. v. Zentner, 514 So. 2d 82 (Fla. 5th DCA 1987). As we stated in Buffington v. Torcise, 504 So. 2d 490, 491 (Fla. 3d DCA 1987), “[w]hen a claim involves unliquidated damages ‘[a] defaulting party has a due proc…
Authorities Cited
- Am. Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982)
- Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985)
- Cole v. Blackwell, 523 So. 2d 725 (Fla. 3d DCA 1988)
- Lauxmont Farms, Inc. v. Zentner, 514 So. 2d 82 (Fla. 5th DCA 1987)