HARTFORD FIRE INSURANCE COMPANY, ETC., APPELLANT,
v.
CONTROLTEC, INC., ETC., APPELLEE
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Hartford Fire Insurance Company appeals a default judgment entered against it after failing to respond to a complaint by Controltec for payment under a construction payment bond. The court reverses, finding that even if excusable neglect existed, Hartford failed to allege a meritorious defense, and that Controltec improperly obtained a final judgment on unliquidated damages without complying with the notice of trial requirement.
The court affirmed the denial of the motion to set aside the default because Hartford failed to allege facts constituting a meritorious defense to its payment obligation under the surety bond. The court reversed the entry of final judgment and award of attorney's fees because Controltec's damages were unliquidated and Controltec failed to comply with the requirement to file a notice of trial setting a hearing at least 30 days after service.
[1] A motion to set aside a default must allege legal grounds or disclose facts constituting a meritorious defense.
[2] Reliance on a third party, without more, may not constitute excusable neglect for failing to respond to a complaint.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Hartford was obligated to make two basic showings before being entitled to have the default set aside: a meritorious defense and excusable neglect.”
Establishes the two-part test for setting aside a default judgment in Florida.
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Join FLexlaw to unlock all legal intelligenceControltec contracted with Blais Mechanical to perform pipefitting work on a building project. Blais was a subcontractor to McMahan Commercial Constru…
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GOSHORN, Judge.
Hartford Fire Insurance Company (Hartford) appeals a final judgment entered after Hartford defaulted by failing to appear or file a responsive pleading. We reverse.
There is no material controversy as to the facts. Controltec, Inc. contracted with Blais Mechanical, Inc. (Blais) to perform the pipefitting work on a building at Dayto-na Beach Community College. Blais was under contract with McMahan Commercial Construction Corporation (McMahan) to perform mechanical subcontracting work on the building. A payment bond was issued by Hartford identifying McMahan as the principal and Hartford as the surety. When Blais failed to pay Controltec for its work, Controltec filed suit against both Blais and Hartford.
Served with Controltec’s complaint, Hartford did not answer or otherwise respond as required by Rule 1.140, Florida Rules of Civil Procedure. Instead, Hartford merely forwarded the pleadings to McMahan requesting that McMahan, “Take action to avoid a default.”1 No response was served or filed by McMahan on behalf of Hartford and a timely default was entered against Hartford. Three months later Hartford moved to set aside the default, alleging excusable neglect by its reliance on McMahan. After hearing, the trial court denied Hartford’s motion.
Hartford was obligated to make two basic showings before being entitled to have the default set aside: a meritorious defense and excusable neglect. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). The meritorious defense requirement is necessary because no useful purpose is served by vacating a default if there is no defense to the complaint. We affirm the trial court on this point because the motion to set aside the default failed to allege legal grounds, or in any manner disclose facts, which would constitute a meritorious defense to Hartford’s obligation to pay money owed Controltec by Blais. Hall v. Byington, 421 So. 2d 817 (Fla. 4th DCA 1982); Perry v. University Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977). Accordingly, we do not reach the issue of whether or not Hartford’s reliance on McMahan constituted excusable neglect.
Following entry of the default, Controltec filed a motion for entry of final judgment seeking damages, costs and attorney fees. Controltec then filed a notice of ex parte hearing on its motion, setting it for hearing six days later. Hartford correctly contends that because Controltec’s damages were unliquidated it should have complied with Florida Rule of Civil Procedure 1.440(c). The rule requires the filing of a notice of trial for review by the court in order to determine whether the cause is ready for trial, and if so, a trial date is to be set not less than 30 days from the service of the notice. Lauxmont Farms, Inc. v. Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987); Bowman v. Kingsland Development, Inc., 432 So. 2d 660 (Fla. 5th DCA 1983).
Controltec’s assertion that its damages were liquidated simply because a fixed sum was demanded by the complaint is without merit. In a contractual setting, liquidated damages exist when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party following a breach of the contract by the other. Bowman, supra. The contract between Blais and Controltec contains no such stipulation.
Accordingly, both the judgment and the award of attorney’s fees are reversed and the cause is remanded for trial on damages.
REVERSED and REMANDED.
W. SHARP and COWART, JJ., concur. . McMahan was not a party to the suit.
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Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148 (Fla. 4th DCA 2006)…ges may exist in a contractual setting “when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party following a breach of the contract by the other.” Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990). However, damages are not liquidated if a court must consider testimony or evidence “to ascertain facts upon which to base a value judgment.” Bowman, 432 So. 2d at 662; see Parker v. Dekle, 46 Fla. 452, 35 So. 4 (1903) (finding…1 / 2
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Watson v. Internet Billing Co., Ltd., 882 So. 2d 533 (Fla. 4th DCA 2004)…warded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.”); Hartford Fire Ins. Co. v. Controltec Inc., 561 So. 2d 1334, 1335 (Fla. 5th DCA 1990) (“In a contractual setting, liquidated damages exist when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party.following a breach of the contract by the other.”). Wh…
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RJG Env't, Inc. v. State Farm Fla. Ins. Co., 62 So. 3d 678 (Fla. 2d DCA 2011)…party without a hearing, “when the exact amount due may be determined from the pleadings[; wjhere evidence must be presented to determine the amount, however, damages are unliquidated” (citation omitted)); Hartford Fire Ins. Co. v. Controltec, Inc., 561 So. 2d 1334 (Fla. 5th DCA 1990) (rejecting assertion that damages were liquidated simply because a fixed sum was demanded by the complaint). The debtor-creditor rule does not apply when damages are unliquidated. Koslow v. Sanders, 4 So. 3d 37, 38 (Fla. 2d DCA 2…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Flagship Nat'l Bank OF Miami v. Gray Distrib. Sys., Inc., 432 So. 2d 660 (Fla. 3d DCA 1983)
- Perry v. Univ. Cabs, Inc., 344 So. 2d 914 (Fla. 3d DCA 1977)
- Hall v. Eleanore Florence Byington & Rinker Materials Corp., 421 So. 2d 817 (Fla. 4th DCA 1982)
- 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)