MELDON RICH, APPELLANT,
v.
ESSIE SPIVEY AND MARY GRIMSLEY, APPELLEES
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A default admits liability but not the specific amount of unliquidated damages, requiring a hearing to determine them.
[1] A default admits all well-pleaded allegations of a complaint, except those relating to the amount of damages.
[2] Damages are liquidated when their proper amount can be determined with exactness from the cause of action as pleaded, by arithmetical calculation, or by application of de…
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Join FLexlaw to unlock all legal intelligenceAppellant sued appellees for civil theft and obtained a default judgment. The trial court awarded only nominal damages, finding a hearing was required…
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PER CURIAM.
Appellant, Meldon Rich, appeals a final judgment after default awarding him $10.00 in nominal damages in his action alleging civil theft against appellees, Essie Spivey and Mary Grimsley. We affirm all issues and address only Issue III, in which Rich contends the trial court erred by finding that although appellees’ liability was established by their default, a hearing was required to determine damages.
A default admits all well-pleaded allegations of a complaint, which may include a plaintiffs entitlement to liquidated damages. See Mahmoud v. Int’l Islamic Trading (IIT), Ltd., 572 So. 2d 979 (Fla. 1st DCA 1990).
“Damages are liquidated when the proper amount to be awarded 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.... 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.”
Sec. Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So. 2d 795, 800 (Fla. 3d DCA 1996) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)), approved, 698 So. 2d 254 (Fla.1997). Accord. Gulf Maint. & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813, 818 (Fla. 1st DCA 1989).
Rich claims that his specific requests for $2,828 for personal property, $1,399 for household items, and for a lot in Pensacola constituted liquidated damages by virtue of appellees’ default, which admitted that such damages were due. On the contrary, a claim for a sum certain in a complaint does not render such alleged damages liquidated. “ ‘A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages.’ ” Sec. Bank, 679 So. 2d at 803 (quoting Henry P. Trawick, Jr., Florida Practice & Procedure § 25-4 at 348 (1988 ed.)).1 See United States Fire Ins. Co. v. C & C Beauty Sales, Inc. 674 So. 2d 169, 172 (Fla. 3d DCA 1996) (“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make the claim liquidated.”).
The above rule is consistent with federal courts’ interpretations of Federal Rule of Civil Procedure 55, which specifically provides, as to damages following a default: “When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made, certain, the clerk upon request of the plaintiff and upon affidavit of the amount shall enter judgment for that amount[.]” As reported in Charles A. Wright, Arthur R. Miller, and Mary K. Kane, Federal Practice & Procedure Civil § 2688, at 58-59, 63-67:
If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true....
* * *
If defendant does not contest the amount prayed for in the complaint and the claim is for a sum certain or a sum that can be made certain by computation, the judgment generally will be entered for that amount without any further hearing....
If the sum is not certain or capable of easy computation, the court may hold whatever hearing or inquiry it deems necessary!.] ...
When defendant contests the amount of the claim, a full hearing may be required on the issue of damages, since a default does not concede the amount demanded.
(Emphasis added.) See, e.g., Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F. 2d 155 (2d Cir.1992); Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F. 2d 1319 (7th Cir.1983); Geddes v. United Fin. Group, 559 F. 2d 557 (9th Cir.1977).
The only case that arguably supports Rich’s position is Dunkley Stucco, Inc. v. Progressive American Insurance Co., 751 So. 2d 723 (Fla. 5th DCA 2000), wherein the Fifth District held that the plaintiffs allegation of a specific amount of damages in its complaint was deemed admitted by virtue of the defendant’s default. “This admission converts what would have been an unliquidated amount into a liquidated one.” Id. at 724.
We consider Dunkley Stucco is factually dissimilar from the case at bar. There, the plaintiff insurance company alleged in its complaint that it had paid to its insured property damages in the amount of $44,982.72 resulting from a collision between the insured’s vehicle and a Dunkley Stucco truck; consequently, it was entitled, as a subrogee of the insured’s claim, to that precise amount of damages from Dunkley Stucco. In contrast, Rich compiled at the end of his complaint a list of real and personal property, and his own valuation of each item. Unlike the allegations in Dunkley Stucco, Rich’s list does not constitute a well-pleaded allegation of fact that could be deemed admitted by appellees’ failure to deny it.
AFFIRMED.
ERVIN, WOLF and DAVIS, JJ., concur. . Cf. Fla. R. Civil P. 1.110(e), regarding general rules of pleading: "Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading." (Emphasis added.)
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Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. 3d DCA 2007)…ges were not established by the parties’ agreement nor are they capable of being determined by arithmetical calculation. Instead, these damages require testimony to ascertain a value and are properly categorized as unliquidat-ed. See Rick v. Spivey, 922 So. 2d 326 (Fla. 1st DCA 2006)(plaintiff s valuation of stolen items constituted unliquidated damages); Boulos v. Yung Sheng Xiamen Yong Chemical Industry Co., Ltd., 855 So. 2d 665 (Fla. 4th DCA 2003)(damages for “lost business” were unliquidated); United Stat…
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Ciprian-Escapa v. City OF Orlando, 172 So. 3d 485 (Fla. 5th DCA 2015)…uidated damages); Mathews Corp. v. Green’s Pool Serv., 584 So. 2d 1006, 1007 (Fla. 3d DCA 1990) (finding a mechanics lien of $39,526.00 referenced in the complaint was sufficiently definite to constitute' liquidated damages). But see Rich v. Spivey, 922 So. 2d 326, 328 (Fla. 1st DCA 2006) (noting that damages alleged in the complaint were not well-pleaded and thus not admitted by the default); Becerra v. Equity Imports, Inc., 551 So. 2d 486, 488 (Fla. 3d DCA 1989) (quoting H. Trawick, Trawick’s Florida Practi…
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Paramo v. Floyd, 154 So. 3d 477 (Fla. 2d DCA 2015)…2.11, Florida Statutes (2011-12), the trial court tripled the claimed actual damages for a total of $237,000. Although the Floyds claimed what they perceived to be a liquidated damage amount, their saying so does not make it so. See Rich v. Spivey, 922 So. 2d 326, 327 (Fla. 1st DCA 2006); United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So. 2d 169, 172 (Fla. 3d DCA 1996) (“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make…
Previewing 3 of 7 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)
- Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)
- Geddes v. United Fin. Grp., 559 F.2d 557 (9th Cir. 1977)
- BellSOUTH Advertising & Publ'g Corp. v. Sec. Bank, N.A., 698 So. 2d 254 (Fla. 1997)
- Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319 (7th Cir. 1983)
- United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So. 2d 169 (Fla. 3d DCA 1996)
- Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So. 2d 723 (Fla. 5th DCA 2000)
- Mahmoud Fathi Mahmoud v. Int'l Islamic Trading (IIT), Ltd., 572 So. 2d 979 (Fla. 1st DCA 1990)
- Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir. 1992)