LUCY R. POWERS, ANNE K. TORRANCE, ET AL., APPELLANTS,
v.
JAMES GENTILE, SR., AND JAMES GENTILE, JR., APPELLEES
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Appellants challenged a final judgment entered without trial or default proceedings. The court reversed, holding that a judgment based on affidavits submitted without notice or opportunity to be heard violates due process and procedural rules requiring proper notice before default or evidence at trial.
A final judgment cannot be entered based on affidavits without giving appellants notice and an opportunity to be heard. Even after proper default entry, unliquidated damages must be established by testimony. Without either a proper default after notice or a trial with testimony and evidence, the judgment is invalid.
[1] A final judgment entered without a trial or a default being entered against a party who has answered is invalid.
[2] Florida Rule of Civil Procedure 1.500(b) requires notice prior to the entry of a default after a party has filed an answer.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.500(b) requires notice prior to the entry of a default after a party has filed an answer to a complaint.”
Establishes the procedural requirement that notice must be given before default entry against a party who answered
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Join FLexlaw to unlock all legal intelligenceAppellees filed a complaint against various defendants for breach of contract, fraud, and other claims related to a failed investment scheme. After de…
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FREEMAN, T.G., Associate Judge.
Appellants challenge a final judgment entered without a trial being held or a default being entered against them. We reverse.
The appellees filed a complaint against various defendants, corporate and individual, based upon a failed investment scheme with regard to a development project in Volusia County. The complaint contained ten counts which included breach of contract, fraud, conversion, civil theft, forgery, breach -of fiduciary duty, etc. After motions to dismiss were denied, appellants filed an answer to the complaint. After a pretrial conference, the lower court established a date of October 18, 1993, for a trial of the case, but the trial was never held.
On October 15, 1993, one of the eodefend-ants, Pelican Bay East Gate Condominium Associates, filed a bankruptcy proceeding. The automatic stay which accompanies such a proceeding prevented further labor by the trial court with regard to that defendant. Appellants, apparently relying on that automatic stay with regard to the corporate defendant, did not appear on the trial date, and although appellees and their attorneys did appear, no testimony was submitted and no trial was held.
Appellees did not request that appellants be sanctioned for nonappearanee, nor did the trial court do so. No request was made to enter a default against appellants for nonappearance and neither a notice of application for a default or a default was ever sent to appellants. Instead, without notice to appellants, appellees submitted affidavits to the trial judge and requested entry of a final judgment. On March 7, 1994, almost five months after the trial date, a final judgment was entered in favor of James Gentile, Sr. in the amount of $1,289,913.20, and in favor of James Gentile, Jr., in the amount of $334,-913.17. This appeal followed.
Florida Rule of Civil Procedure 1.500(b) requires notice prior to the entry of a default after a party has filed an answer to a complaint. Appellants were properly noticed for the trial set for October 18, 1993, but that fact cannot support the judgment, since the trial was not held. If a trial had in fact been held, and appellees had submitted their documentary evidence and the testimony of witnesses, appellants would have received their day in court, although in absen-tia, and due process would have been observed. However, such was not the case.
In addition, permitting unliquidated damages to be established by affidavit without giving appellants notice and an opportunity to be heard renders this final judgment invalid. Bowman v. Kingsland Development Inc., 432 So. 2d 660 (Fla. 5th DCA 1983). Even after entry of a proper default, it is necessary to establish the amount of unliqui-dated damages by the taking of testimony. Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989); Air Unlimited, Inc. v. Volare Air, Inc., 428 So. 2d 294 (Fla. 3d DCA 1983).
Absent the entry of a default after appropriate notice, or a trial after appropriate notice and the taking of testimony and evidence, this judgment cannot stand. Turner Properties, Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA 1992). We reverse and remand for a trial on all issues.
REVERSED and REMANDED.
GOSHORN and THOMPSON, JJ., concur.
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Int'l Energy Corp. v. Darrel Hackett and Ralph Dwake, 687 So. 2d 941 (Fla. 3d DCA 1997)…eared in the action by filing or serving any papers, no default may be entered against such party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995); Brooks v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Greyhound Financial Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA…
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Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So. 2d 723 (Fla. 5th DCA 2000)…Claims Service Manager claims, “DUNKLEY STUCCO, INC., [*726] owes Plaintiff $44,982.72, plus interest, which sums are currently due and owing to Plaintiff’ if those damages are unliquidat-ed, then an affidavit is insufficient. See Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995) (“permitting unliquidated damages to be established by affidavit without giving appellants notice and an opportunity to be heard renders this final judgment invalid”). Finally, it is interesting to note that had a jurisdict…1 / 2
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Renia T. Maranto v. Dearborn, 687 So. 2d 940 (Fla. 3d DCA 1997)…eared in the action by filing or serving any papers, no default may be entered against such party without prior notice of the application for default. Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); Powers v. Gentile, 662 So. 2d 374, 375 (Fla. 5th DCA 1995); Brooks v. Ocean Village Condominium Ass’n, Inc., 656 So. 2d 275, 276 (Fla. 3d DCA 1995); Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993); Neder v. Greyhound Financial Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA…
Previewing 3 of 6 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)
- Gulf Maint. & Supply, Inc. v. Barnett Bank OF Tallahassee, 543 So. 2d 813 (Fla. 1st DCA 1989)
- AIR Unlimited Inc. v. Volare AIR, Inc., 428 So. 2d 294 (Fla. 3d DCA 1983)
- Turner Props., Inc. v. Marchetta, 607 So. 2d 506 (Fla. 3d DCA 1992)