CARL TAND, APPELLANT,
v.
C.F.S. BAKERIES, INC., APPELLEE
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Carl Tand appeals the denial of his motion to set aside a default judgment entered against him by C.F.S. Bakeries, Inc. for allegedly unpaid goods. The court reversed, holding that Tand was entitled to due process notice and an opportunity to be heard regarding unliquidated damages before a default judgment could be entered.
A defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to determine unliquidated damages. Because Tand did not receive notice of a hearing or trial to determine actual damages, the trial court erred in denying his motion to set aside the default judgment.
[1] Damages are liquidated when the amount to be awarded can be determined with exactness from the cause of action as pled, by an agreement by the parties, by an arithmetical…
[2] A motion to vacate a judgment under Rule 1.540(b)(1-3) is untimely if filed more than one year after the entry of the judgment.
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Join FLexlaw to unlock all legal intelligence“When a claim involves unliquidated damages "[a] defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of [those] damages."”
Establishes the core due process right of a defaulting defendant regarding unliquidated damages
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Join FLexlaw to unlock all legal intelligenceC.F.S. Bakeries filed a complaint in September 1986 against David Dickerson d/b/a Specialty Bakery. In November 1986, C.F.S. filed an amended complain…
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PER CURIAM.
The defendant, Carl Tand, appeals an order denying his motion to set aside judgment. We reverse and remand.
On September 17, 1986, C.F.S. Bakeries, Inc. [CFS] filed a four count complaint alleging various causes of action for goods sold and delivered, including account stated, open account and unjust enrichment. The original complaint listed David Dickerson d/b/a Specialty Bakery Food Products a/k/a Specialty Bakery as the sole defendant. Attached thereto as Exhibit A was the Affidavit of Claim of James Japczyk, which stated that Mr. Japczyk was the comptroller of CFS, and that Specialty Bakery owed CFS the sum of $7,219.06.
On November 4, 1986, CFS filed an amended complaint without having filed a motion for leave to amend and without serving Mr. Dickerson. The amended complaint mirrored the original complaint except that it dropped Mr. Dickerson as a party and substituted Carl Tand d/b/a Specialty Bakery Food Products a/k/a Specialty Bakery as the defendant. The amended complaint makes reference to an Exhibit A, but no exhibit was attached thereto, nor was the exhibit to the original complaint incorporated by reference. A default was entered by the clerk of the court on December 9, 1986. A default final judgment awarding damages and attorney’s fees was entered by the lower court on January 28, 1987. However, no motion for entry of final default judgment nor notice of hearing was provided to either the court or Tand.
On April 21, 1989, Tand moved to set aside the judgment. The verified motion alleged that Tand first became aware of the default final judgment in December 1988. Tand discovered the judgment during the course of other legal proceedings. Further, Tand affirmatively stated that he neither received notice, nor had any actual knowledge of the hearing for entry of the final default judgment. CFS presented no evidence or testimony to contradict the verified motion. The trial court denied the motion to set aside the judgment and Tand appealed.
There is nothing on the record that reflects that CFS’ damages were liquidated. Liquidated damages are damages that are based upon “an arithmetical calculation or by application of definite rules of law”. Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA 1983)). Therefore, CFS’ damages were unliquidated.
When a claim involves unliquidated damages “[a] defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of [those] damages.” Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 663 (Fla. 5th DCA 1983)); Fla.R. Civ.P. 1.440(c). In the instant case, Tand did not receive notice of a hearing or trial to determine actual damages. Therefore, the trial court erred in denying his motion to set aside the final default judgment. Accordingly, we set aside the final default judgment and remand for a determination of actual damages.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…t of unliquidated damages. Protection of this right is provided by Florida Rule of Civil Procedure 1.080(h)(1) and the last sentence in Rule 1.440(c). Id. at 662-63 (emphasis in original, citations omitted)4; see also Tand v. C.F.S. Bakeries, Inc., 559 So. 2d 670, 671 (Fla. 3d DCA 1990); Gulf Maintenance & Supply, Inc.v. Barnett Bank, 543 So. 2d 813, 818 (Fla. 1st DCA 1989); Buffington v. Torcise, 504 So. 2d 490, 491 (Fla. 3d DCA 1987); 33 Fla.Jur.2d Judgments and Decrees § 275 (1994). The setting of unliqui…1 / 2
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Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148 (Fla. 4th DCA 2006)…affidavit from an attorney to the effect that $40 would be a reasonable fee); Pierce, 721 So. 2d at 783 (stating that damages are unliquidated “[i]f testimony must be taken to determine the exact amount of damages.”); Tand v. C.F.S. Bakeries, Inc., 559 So. 2d 670 (Fla. 3d DCA 1990) (finding that damages were unliquidated where the amended complaint made reference to an exhibit that merely stated that the defendant owed the plain [*1151] tiff the sum of $7,219.06); Hartford Fire Ins. Co. v. Controltec, Inc.,…
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United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So. 2d 169 (Fla. 3d DCA 1996)…of definite rules of law.... However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Id. at 662-63. See also Tand v. C.F.S. Bakeries, Inc., 559 So. 2d 670 (Fla. 3d DCA 1990). In this case C & C alleged that the value of the stolen property was $486,259.82. [*172] However, it asked for damages in excess of that amount in the complaint and both parties requested a jury trial. The fact that it alleged i…
Previewing 3 of 10 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)
- Buffington v. Torcise, 504 So. 2d 490 (Fla. 3d DCA 1987)