Opinion
Case No. 5D18-2884
03-27-2020
ANTHONY J. CIOTTI, AS EXECUTOR OF THE ESTATE OF ANTHONY G. CIOTTI, Appellant, v. NANCI HUBSCH, Appellee.
Moses Robert DeWitt, of DeWitt Law Firm, P.A., Orlando, for Appellant. Preston H. Oughton, of The Law Office of Preston H. Oughton, Jacksonville, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Orange County, Keith A. Carsten, Judge. Moses Robert DeWitt, of DeWitt Law Firm, P.A., Orlando, for Appellant. Preston H. Oughton, of The Law Office of Preston H. Oughton, Jacksonville, for Appellee. HARRIS, J.
Appellant, Anthony J. Ciotti, as Executor of the Estate of Anthony G. Ciotti, appeals the trial court's order denying a motion to vacate the final judgment in favor of Appellee, Nanci Hubsch. Appellant argues that the trial court violated his due process rights when it awarded unliquidated damages without an evidentiary hearing or a trial. We agree and reverse. We affirm without further discussion the trial court's denial of Appellant's motion to vacate the default entered below.
On May 2, 2016, Appellee filed a pro se complaint for civil theft against Anthony G. Ciotti ("Decedent") alleging that he agreed to remove all of Appellee's personal property from her home in foreclosure, sell the items at market value, and surrender all proceeds to her. The complaint further alleged that Appellee repeatedly wrote to Decedent and requested a list of the items sold and the amount of money paid for those items, but he ignored all requests and ceased all communication.
Appellee attached to her complaint a list of items that Decedent allegedly sold, gave to his family members, or kept for himself, without any compensation to her. The itemized list grouped items together and provided a total for each group. The total for all groups came to $42,200, and in her suit, Appellee sought recovery of treble damages under section 772.11, Florida Statutes (2016).
After Decedent failed to respond within twenty days of the service of the summons, the trial court entered an order of default. Appellee moved for final summary judgment, attaching to her motion the same list of items that had been attached to her complaint. On December 12, 2016, without a hearing or trial, the trial court entered a final judgment, awarding Appellee $126,000 in damages.
Eleven months after the trial court entered final judgment and over one year after the default was entered, Decedent filed a motion to vacate the final judgment and default pursuant to Florida Rule of Civil Procedure 1.540. In the motion, Decedent argued that the final judgment was void because he was not given notice and an opportunity to be heard on the issue of damages. The motion alleged that the summary judgment motion attached an unverified itemized list of personal items, which constituted unliquidated damages, and required testimony to ascertain facts upon which to base a value judgment. Approximately four months later, Appellant filed a suggestion of death indicating that Decedent passed away on December 19, 2017, and moved to substitute proper party.
While a default admits all well-pleaded allegations of a complaint, including a plaintiff's entitlement to liquidated damages, it does not admit entitlement to a specific amount of unliquidated damages. Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 663 (Fla. 5th DCA 1983). 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." Id. at 662. Damages are not liquidated, however, "if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment." Id. at 663; see also Paramo v. Floyd, 154 So. 3d 477, 478 (Fla. 2d DCA 2015) (holding that "[a]n evidentiary hearing is necessary to determine the amount of [unliquidated] damages"); Minkoff v. Caterpillar Fin. Servs. Corp., 103 So. 3d 1049, 1051 (Fla. 4th DCA 2013) ("Where the damages are unliquidated, a court must consider evidence and testimony to arrive at the appropriate amount."); Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 665 (Fla. 3d DCA 2007) ("[D]amages for lost business profits, stolen assets, and operating expenses" require testimony to ascertain value and are properly categorized as unliquidated); Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So. 2d 1148, 1151 (Fla. 4th DCA 2006) ("[E]ven though it was in default, Bodygear was entitled to an evidentiary hearing on the issue of damages noticed in compliance with Florida Rule of Civil Procedure 1.440.").
In Rich v. Spivey, 922 So. 2d 326, 327 (Fla. 1st DCA 2006), also a civil theft case, the First District held that damages were unliquidated where a plaintiff compiled a list of real and personal property and his own valuation of each item at the end of his complaint. The court concluded that the list did not constitute a well-pleaded allegation of fact that could be deemed admitted by the defendant's failure to deny, and therefore, a hearing was required to determine damages. Id. at 328; see also Paramo, 154 So. 3d at 478 (holding $34,000 item for missing building materials appeared to be based only on plaintiff's estimation and thus, not exact calculation as required for liquidated damages); U.S. 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.").
Here, the default admitted all well-pleaded allegations of Appellee's complaint. However, like in Rich, the complaint's request for $42,200 for personal property and household items did not constitute liquidated damages by virtue of the default. Florida Rule of Civil Procedure 1.440(c) requires that "[i]n actions in which the damages are not liquidated, [is the case here,] the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080." (Emphasis added). No such order or notice was provided in this case. Even though a default had been entered, because this case involved a claim for unliquidated damages, notice and an opportunity to defend must be given. See Pierce v. Anglin, 721 So. 2d 781, 783 (Fla. 1st DCA 1998). Therefore, the final summary judgment was void and must be reversed for the trial court to conduct a trial on the issue of damages.
REVERSED and REMANDED EISNAUGLE and TRAVER, JJ., concur.