HARBOUR TOWER DEVELOPMENT CORP., APPELLANT,
v.
SEABOARD EQUIPMENT CO., INC., APPELLEE
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A defendant against whom a default is entered is entitled to notice and an opportunity to be heard on the issue of unliquidated damages.
Plaintiff sued for replevin of merchandise sold under a retain title contract due to default. After the defendant failed to respond to service, a defa…
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This is an appeal by a defendant from a judgment entered on default, in a replevin action. The complaint alleged sale of merchandise under retain title contract and an unpaid balance in default. Plaintiff sought repossession, damages for wrongful detention and attorney fees. On failure of the defendant to respond to personal service, default was entered. At a subsequent hearing without notice to defendant plaintiff submitted affidavit proof of damages and the judgment appealed from was entered, which recited plaintiff had retaken the property and awarded damages.
Appellant contends (1) it was error to assess damages and enter judgment without notice to the defendant and an opportunity to be heard on damages, (2) that an incorrect measure of damages was employed, and (3) that there was no basis in law for allowance of attorney’s fees. The appellee has not favored this court with a brief.
As the damages involved were unliquidated, the defendant against whom a default had been entered for failure to' answer was entitled to notice and an opportunity to be heard on the trial of the issues: relating to damages. See Moore v. Boyd, Fla.1952, 62 So.2d 427; Pan American World Airways v. Gregory, Fla.App.1957, 96 So.2d 669. Appellant correctly contends: the measure of damages was not the price of the goods or expense of the plaintiff in connection with the sale. As to the measure of damages see 28 Fla.Jur., Replevin,. § 41. Appellant’s contention regarding allowance of plaintiff’s attorney fees is without merit. The sale contract contained sufficient provision for them. See 28 Fla.. Jur., Replevin § 42.
Accordingly the judgment appealed from-is reversed and the cause is remanded for new trial on damages upon notice to defendant.
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Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)…f unliquidated damages is to be tried. See Pan American World Airways, Inc. v. Gregory, Fla.App.1957, 96 So. 2d 669; Hurst v. Federal Screen Supply Co., Fla.App.1962, 142 So. 2d 151; Harbour Tower Develop. Corp. v. Seaboard Equip. Co., Fla.App.1965, 179 So. 2d 405; Carroll’s, Inc. v. De Barros, Fla.App.1966, 182 So. 2d 49; Lawn v. Wasserman, Fla.App.1969, 226 So. 2d 261. In Lawn v. Wasserman we quoted portions of Rule 1.440(c). Those portions are another way of stating the rule concerning the necessity of not…
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Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970)…ated damages. Winky’s, Inc. v. Francis, Fla.App.1969, 229 So. 2d 903; Lawn v. Wasserman, Fla.App.1969, 226 So. 2d 261; Carroll’s, Inc. v. DeBarros, Fla.App.1966, 182 So. 2d 49; Harbour Tower Development Corp. v. Seaboard Equipment Co., Fla.App.1965, 179 So. 2d 405; Hurst v. Federal Screen Supply Co., Fla.App.1962, 142 So. 2d 151; Pan American World Airways v. Gregory, Fla.App.1957, 96 So. 2d 669. The record reveals that no notice was given the defendant, Osceola Farms Co., its agent or attorney as to the dat…
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Arnold v. Stevenson, 244 So. 2d 549 (Fla. 4th DCA 1971)…So. 2d 477. Winky’s, Inc. v. Francis, Fla.App. 1969, 229 So. 2d 903; Lawn v. Wasserma'n, Fla.App.1969, 226 So. 2d 261; Carroll's, Inc. v. DeBarros, Fla.App.1966, 182 So. 2d 49; Harbour Tower Development Corp. v. Seaboard Equipment Co., Fla.App.1965, 179 So. 2d 405; Hurst v. Federal Screen Supply Co., Fla.App.1962, 142 So. 2d 151; Pan American World Airways v. Gregory, Fla.App. 1957, 96 So. 2d 669. That part of the order denying the defendants’ motion to set aside default is affirmed; that part of the order d…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- PAN Am. World Airways, Inc. v. Gregory, 96 So. 2d 669 (Fla. 3d DCA 1957)
- Moore v. Boyd, 62 So. 2d 427 (Fla. 1952)