STEPHANIE LYNN N/K/A STEPHANIE SZOPA, APPELLANT,
v.
RICHARD SAKHAROFF, APPELLEE
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Appellant Stephanie Lynn was defaulted in a lawsuit by Richard Sakharoff for malicious prosecution. After settling with other defendants, Sakharoff proceeded to a non-jury trial on damages without Lynn's participation, resulting in a judgment against her. The court reversed, holding that a defendant's right to a jury trial—demanded in the original complaint—cannot be waived merely by failure to appear at a non-jury trial without affirmative consent.
The court held that a defendant does not forfeit the right to a jury trial on unliquidated damages merely by being defaulted or failing to appear at a non-jury trial. A jury trial demand cannot be withdrawn without affirmative consent of all parties, and mere non-appearance is insufficient to constitute a waiver.
[1] A defendant against whom a default has been entered is entitled to a jury trial on unliquidated damages if a jury trial was previously demanded in the complaint, absent a…
[2] A waiver of the right to a jury trial must be manifested by affirmative action, and mere failure to appear at a noticed non-jury trial is insufficient to constitute a wai…
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Join FLexlaw to unlock all legal intelligence“It is well settled that the entry of a default against a defendant does not deprive such defendant of the right to a hearing on unliquidated damages.”
Establishes that default judgment does not eliminate the right to have damages determined, particularly unliquidated damages
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Join FLexlaw to unlock all legal intelligenceIn 2005, Sakharoff sued the City of Boca Raton, two police officers, and Lynn for false arrest and malicious prosecution, demanding a jury trial. Lynn…
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Appellant Stephanie Lynn appeals from a final judgment in favor of appellee Richard Sakharoff after a non-jury trial on damages.
Appellee filed suit against the City of Boca Raton, two Boca Raton police officers and appellant in 2005. Appellee sought damages for false arrest against the City of Boca Raton and the police officers, and for malicious prosecution against appellant. The complaint demanded a trial by jury.
Appellant did not answer the complaint and was eventually defaulted. Appellee settled with the City and the police officers. Appellee sent notice to appellant that he was seeking a non-jury trial to resolve the issue of damages. She failed to appear at the trial and a judgment was entered against her. This timely appeal follows.
Appellant argues the entry of a default does not deprive a defendant of having damages decided by a jury if one was demanded in the complaint, absent a waiver. It is well settled that the entry of a default against a defendant does not deprive such defendant of the right to a hearing on unliquidated damages. Matejka v. Dulaney, 40 So.3d 865, 866 (Fla. 4th DCA 2010). When a jury trial has been demanded by the plaintiff, unless the defendant waives such right, the defendant is entitled to a jury trial on the issue of unliquidated damages. Shasho v. Euro Motor Sport, Inc., 979 So.2d 343, 345-46 (Fla. 4th DCA 2008).
A demand for trial by jury may not be withdrawn without the consent of *898the parties. See Fla. R. Civ. P. 1.430(d). A party’s consent to a withdrawal of the demand for a jury trial “must be manifested by affirmative action.” Curbelo v. Ullman, 571 So.2d 448, 444 (Fla.1990). The mere failure of a party to appear for, or participate in, the non-jury trial is insufficient to constitute a waiver. Hornblower v. Cobb, 932 So.2d 402, 407-08 (Fla. 2d DCA 2006). The fact that the non-appearing party was served with notice of the non-jury proceedings, and failed to respond or participate, is insufficient. Barge v. Simeton,, 460 So.2d 939, 940 (Fla. 4th DCA 1984).
There is no evidence in the record that appellant waived her right to a jury trial. Accordingly, we reverse and remand for a jury trial on unliquidated damages. Our opinion here today makes the second issue on appeal, regarding service of process, unnecessary to address.
Reversed and Remanded.
TAYLOR and GERBER, JJ., concur.
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Citator
Cited By
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Oluwabukola Olawoye and Mulikatou Disu v. Olufisayo Arubuola, 198 So. 3d 1086 (Fla. 1st DCA 2016)…n, 571 So. 2d 443, 444 (Fla.1990) (“When a jury trial has been requested by the plaintiff, the defendant is still entitled to a jury trial on the issue of damages even though a default has been entered against the defendant....”); Lynn v. Sakharoff, 82 So. 3d 896 (Fla. 4th DCA 2011). Accordingly, the order striking Appellants’ answer and affirmative defenses and entering a default against them is REVERSED. The final order awarding monetary damages is likewise REVERSED and this matter is REMANDED for further…
Authorities Cited
- Barge v. Simeton, 460 So. 2d 939 (Fla. 4th DCA 1984)
- Hornblower v. Toynetta C. Cobb, 932 So. 2d 402 (Fla. 2d DCA 2006)
- Anne Matejka v. Dulaney, 40 So. 3d 865 (Fla. 4th DCA 2010)
- Newberry v. State, 979 So. 2d 343 (Fla. 1st DCA 2008)
- Shasho v. Euro Motor Sport, Inc., 979 So. 2d 343 (Fla. 4th DCA 2008)