CARL TERRELL MITCHELL D/B/A SHOWTIME ENTERTAINMENT & TALENT AGENCY P/K/A TWISTA, APPELLANT,
v.
NORTHSTAR PANAMA CITY BEACH, INC., A FLORIDA CORPORATION, D/B/A CLUB LA VELA, APPELLEE
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The appellate court affirmed the trial court's denial of a motion to set aside a default judgment based on lack of proper service and failure to show excusable neglect, but reversed and remanded the award of unliquidated damages because a defaulting defendant has a due process right to notice and an opportunity to be heard regarding the calculation of such damages.
The trial court did not abuse its discretion in denying the motion to set aside based on service and excusable neglect grounds, as there was competent substantial evidence of proper service and Mitchell failed to demonstrate excusable neglect and due diligence. However, the award of unliquidated damages must be reversed because a defaulting defendant has a due process entitlement to notice and an opportunity to be heard regarding the calculation of unliquidated damages.
[1] A trial court does not abuse its discretion in denying a motion to set aside a default judgment when the moving party fails to demonstrate excusable neglect and due dilig…
[2] A default judgment admits well-pleaded allegations concerning entitlement to liquidated damages, but not entitlement to unliquidated damages.
Previewing 2 of 6 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“While a default admits all well-pleaded allegations of a complaint including a plaintiffs entitlement to liquidated damages, it does not admit entitlement to unliquidated damages.”
Establishes the fundamental principle that defaults do not automatically admit liability for unliquidated damages.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCarl Terrell Mitchell, doing business as Showtime Entertainment & Talent Agency, was served with process in a lawsuit by Northstar Panama City Beach, …
The full statement of facts, procedural history, and disposition for this case are member content.
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We hold there was competent substantial evidence to support the trial court’s finding that appellant was properly served with process, and the trial court did not abuse its discretion in denying appellant’s motion to set aside the default final judgment on the basis that appellant failed to demonstrate excusable neglect and due diligence. See, e.g., Szucs v. Qualico Dev., Inc., 893 So.2d 708, 711 (Fla. 2d DCA 2005); Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 303 (Fla. 2d DCA 2004).
We reverse, however, that portion of the triail court’s order as it relates to the default final judgment’s award of unliquidat-ed damages. “While a default admits all well-pleaded allegations of a complaint including a plaintiffs entitlement to liquidated'damages, it does not admit entitlement to unliquidated damages.” Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 665 (Fla. 3d DCA 2007). “It is well settled that a defaulting party ‘has a due process entitlement to notice and opportunity to be heard as to the presentation of and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages.’ ” Id. at 666 (quoting Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 663 (Fla. 5th DCA 1983)). Indeed, as the Third District observed in Cellular Warehouse, “ ‘[t]he setting of unliquidated damages without the required notice and without proof is regarded as fundamental error.’ ” Id. (quoting Sec. Bank, N.A. v. BellSouth Advert. & Publ’g Corp., 679 So.2d 795, 800 (Fla. 3d DCA 1996), approved, 698 So.2d 254, 256 (Fla.1997)). Furthermore,
[i]t is irrelevant to this analysis that [the defendant] had notice of the default final judgment after it was entered. A violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void, and [Florida] Rule [of Civil Procedure] 1.540(b)(4) provides relief from void judgments at any time.
Id. (citing Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)). See also Szucs, 893 So.2d at 712. Thus, while an error in notice does not void the entire judgment but only that portion awarding unliquidated damages, see Cellular Warehouse, 957 So.2d at 666, *834where, as here, a portion of the damages sought are unliquidated, “a court must consider evidence and testimony to arrive at the appropriate amount.” Minkoff v. Caterpillar Fin. Servs. Corp., 103 So.3d 1049, 1051 (Fla. 4th DCA 2013) (citing Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006)).
Accordingly, the Order Denying Defendant’s Motion to Set Aside Default Final Judgment is AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.
ROWE, SWANSON, and BILBREY, JJ., concur.
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Tata v. Tata, 207 So. 3d 933 (Fla. 4th DCA 2016)…sent to the change of custody order. But, the father testified otherwise and the trial court accepted his testimony. The court’s finding on this issue is supported by competent substantial evidence. Cf. Mitchell v. Northstar Panama City Beach, Inc., 171 So. 3d 833 (Fla. 1st DCA 2015); Suleiman v. Yunis, 168 So. 3d 319 (Fla. 5th DCA 2015). Second, the maternal grandmother argues the father’s written consent was unnecessary under section 751.02(1), Florida Statutes (2008). But, section 751.02 governs who may b…
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Daley v. Elevate Roofing & Exteriors Inc. (Fla. 6th DCA 2026)…r."). And each of our sister courts has held that a default judgment for unliquidated damages is void if the plaintiff does not notify the defendant of his right to contest the damages claim. See, e.g., Mitchell v. Northstar Panama City Beach, Inc., 171 So. 3d 833, 833-34 (Fla. ---PAGE 6--- 1st DCA 2015); Rodriguez v. Thompson, 235 So. 3d 986, 988 (Fla. 2d DCA 2017); Cellular Warehouse, 957 So. 2d at 665; Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090, 1095 (Fla. 4th DCA 2006); Ciprian-Escapa v. Cit…
Authorities Cited
- Flagship Nat'l Bank OF Miami v. Gray Distrib. Sys., Inc., 432 So. 2d 660 (Fla. 3d DCA 1983)
- Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)
- Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662 (Fla. 3d DCA 2007)
- Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)
- Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148 (Fla. 4th DCA 2006)
- Szucs v. Qualico Dev., Inc., 893 So. 2d 708 (Fla. 2d DCA 2005)
- BellSOUTH Advertising & Publ'g Corp. v. Sec. Bank, N.A., 698 So. 2d 254 (Fla. 1997)
- Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)
- Minkoff v. Caterpillar Fin. Servs. Corp., 103 So. 3d 1049 (Fla. 4th DCA 2013)
- Gibellina v. Iwanowski, 103 So. 3d 1049 (Fla. 2d DCA 2013)