FIERA.COM, INC., APPELLANT,
v.
DIGICAST NEW MEDIA GROUP, INC., APPELLEE
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Fiera.com appeals the entry of a default judgment and garnishment order entered without notice or opportunity to defend on damages. The court reversed, holding that where damages are unliquidated, a defendant is entitled to notice and a hearing to contest the amount before judgment is entered.
A defendant is entitled to notice and an opportunity to defend against unliquidated damages before entry of default judgment. The damages here were unliquidated because testimony was required to determine the reasonable number of hours worked and expenses incurred, and the complaint contained no specific amount and used language indicating damages had not been finally determined.
[1] A party against whom a default has been entered is entitled to notice and an opportunity to defend when damages are unliquidated.
[2] Damages are unliquidated when testimony must be taken to determine the exact amount or to ascertain facts upon which to base a value judgment.
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“Where an action involves unliquidated damages, a party against whom a default has been entered is entitled to notice of an order setting the matter for trial, and must be afforded an opportunity to defend.”
Establishes the controlling legal principle that unliquidated damages require notice and opportunity to defend before default judgment
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Join FLexlaw to unlock all legal intelligenceFiera.com and DigiCast entered into a media planning agreement providing for a 15% agency commission and $250/hour fees if media placement was cancell…
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RAMIREZ, J.
Fiera.com, Inc. appeals the denial of its motion requesting relief from a judgment entered pursuant to an entry of default and from a final judgment of garnishment. We reverse because Fiera should have been given the opportunity to defend against the amount of damages to be awarded to plaintiff DigiCast New Media Group, Inc. Fiera entered into an agreement with DigiCast for media planning and consulting. The agreement stated that DigiCast would receive a 15% agency commission from the media for all media buys it arranged for Fiera. In addition, the agree ment stated that “[i]n the event that media placement is cancelled, defaulted or abandoned, DigiCast will then receive $250.00/ hr. for media planning and consulting services plus expenses.” DigiCast subsequently withdrew as consultant and submitted a bill to Fiera for the total hours it spent on proposals, budget, meetings, and travel. DigiCast billed the hours at $250.
On October 15, 2001, DigiCast filed a complaint against Fiera alleging breach of contract and unjust enrichment. DigiCast moved for a clerk’s default on November 7, 2001, and final judgment in favor of Digi-Cast in the amount of $126,396.00 was entered on December 7, 2001. Fiera did not receive notice of the application for clerk’s default and no notice of final judgment. A writ of garnishment was issued on December 10, 2001, and Fiera learned of the garnishment on December 13, 2001.
Fiera filed a motion for relief from judgment and to vacate the default on January 7, 2002, alleging excusable neglect pursuant to rule 1.540 and lack of notice of both the motion for default and the entry of judgment. After a hearing on January 10, 2002, the trial court denied Fiera’s motion to vacate the default, as well as its motion for rehearing.
Fiera argues that it was entitled to a hearing on damages because the damages were unliquidated. We agree. “Where an action involves unliquidated damages, a party against whom a default has been entered is entitled to notice of an order setting the matter for trial, and must be afforded an opportunity to defend.” Pierce v. Anglin, 721 So. 2d 781, 783 (Fla. 1st DCA 1998). If testimony must be taken to determine the exact amount of damages or to ascertain facts upon which to base a value judgment, the claim is unliquidated. See Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983).
In this case, the agreement stated that DigiCast would receive 15% commission as compensation. DigiCast was entitled to the hourly fee of $250 only if media placement was cancelled, defaulted or abandoned. The complaint erroneously alleges that Fiera agreed to compensate DigiCast at the rate of $250 per hour. It never alleges that Fiera ever cancelled, defaulted or abandoned any media placement. Thus, it is doubtful whether the complaint even states a cause of action. “When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.” State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069, 1072 (Fla. 4th DCA 2001).
Furthermore, testimony was required to determine the reasonable number of hours worked by DigiCast on the cancelled, defaulted or abandoned media placement and the amount of expenses incurred. The two count complaint alleged a breach of contract in count one, and unjust enrichment in count two. We fail to see how count two could possibly justify an award of liquidated damages. In this count, DigiCast pled that “at a minimum,” the benefits conferred had a “reasonable value of $111,774.00.” The allegations are obviously cast in language indicative that the damages have not been finally determined.
As to count one for breach of contract, even assuming the count was “well-plead,” this count contains no specific amount set forth in the complaint. See Dunkley Stucco, Inc. v. Progressive American Ins. Co., 751 So. 2d 723, 724 (Fla. 5th DCA 2000). The exhibit attached to the complaint was legally insufficient, conclusory, indecipherable and woefully inadequate to fulfill this requirement. Extrinsic evidence was necessary to determine the amount of damages, making the damages unliquidated. Thus, Fiera should have been given an opportunity to defend against the amount of damages before the entry of a final judgment.
Reversed and remanded.
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Maruchi Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d 1097 (Fla. 3d DCA 2011)…ire testimony to ascertain a value. Cellular Warehouse, 957 So. 2d at 665. Moreover, where the claim is for unjust enrichment, damages may be considered unliquidated despite an existing contract. See Fiera.com, Inc. v. DigiCast New Media Grp., Inc., 837 So. 2d 451 (Fla. 3d DCA 2002). Here, the only proof of damages the contractor submitted was his affidavit stating the amount which remained unpaid under the contract. Both parties agree that the contracted work was not completed. Therefore, because further ev…
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Ciprian-Escapa v. City OF Orlando, 172 So. 3d 485 (Fla. 5th DCA 2015)…this manner. See Hill v. Murphy, 872 So. 2d 919, 922 (Fla. 2d DCA 2003) (holding that a complaint alleging damages in excess of $15,000 was not sufficiently definite to establish liquidated damages); Fiera.com, Inc. v. DigiCast New Media Grp., Inc., 837 So. 2d 451, 452 (Fla. 3d DCA 2002) (finding that a specific pleading of damages in the complaint having “at a minimum” a “reasonable value of $111,774.00” did not constitute liquidated damages as the damages were not “finally determined”). Damages exceeding th…
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Hill v. Murphy, 872 So. 2d 919 (Fla. 2d DCA 2003)…arbor Props. Assocs., Ltd. v. Huff, 632 So. 2d 229, 229 (Fla. 2d DCA 1994); Bowman, 432 So. 2d at 662. Medcom USA, Inc. v. Ryder Homes & Groves Co., 847 So. 2d 594, 596 (Fla. 2d DCA 2003); see also Fiera.com, Inc. v. DigiCast New Media Group, Inc., 837 So. 2d 451, 452 (Fla. 3d DCA 2002). Here, as in Medcom, the damages were unliquidated. The Murphys’ complaint alleged only that their damages exceeded $15,000. Nothing in the record shows that the Murphys’ damages could be determined by either mathematical ca…
Previewing 3 of 8 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)
- Pierce v. Anglin, 721 So. 2d 781 (Fla. 1st DCA 1998)
- State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069 (Fla. 4th DCA 2001)
- Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So. 2d 723 (Fla. 5th DCA 2000)