STUART B. YANOFSKY, ESQ. v. ANDREW ISAACS ( 2019 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    STUART B. YANOFSKY, ESQ.,
    Appellant,
    v.
    ANDREW ISAACS,
    Appellee.
    No. 4D18-2963
    [July 31, 2019]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
    062014CA012232AXXXCE.
    Stuart B. Yanofsky of Stuart B. Yanofsky, P.A., Plantation, for
    appellant.
    Ryan D. Gesten of George Gesten McDonald, PLLC, Lake Worth, for
    appellee.
    KUNTZ, J.
    Stuart Yanofsky appeals the circuit court’s summary judgment order
    in favor of Andrew Isaacs. We affirm in part, reverse in part, and remand
    for a trial on damages.
    Background
    Isaacs filed a complaint against Yanofsky for legal malpractice relating
    to Yanofsky’s representation of him in a dissolution-of-marriage
    proceeding. Isaacs alleged that Yanofsky represented him at a hearing to
    adjudicate his exceptions to a general magistrate’s report but failed to
    inform him—before the window for appeal expired—“that matters had been
    adjudicated adversely to him.”
    After Yanofsky failed to respond to Isaacs’s discovery requests, Isaacs
    contacted Yanofsky’s office to request the outstanding discovery. When
    Yanofsky failed to respond, Isaacs sought and obtained an order
    compelling Yanofsky to respond to the discovery requests within ten days.
    When the court-ordered deadline passed without a response to the
    discovery, Isaacs sought sanctions against Yanofsky and sought and
    obtained a second court order compelling responses to the outstanding
    discovery.
    Again, the court-ordered deadline passed without a response to the
    discovery. The court held a hearing and sanctioned Yanofsky for violating
    the court’s discovery orders. The court struck Yanofsky’s answer to the
    complaint and ordered him to pay the attorney’s fees Isaacs incurred in
    seeking to obtain the outstanding discovery.
    In the order sanctioning Yanofsky, the court noted that Yanofsky had
    produced a “purported case file” for the dissolution-of-marriage suit. But
    the court found the late production at a deposition satisfied neither the
    requirement to respond to discovery nor the court’s orders. 1
    After the court struck Yanofsky’s answer, Isaacs moved for summary
    judgment on his legal-malpractice claim. He argued that he was entitled
    to liability in his favor because the court struck Yanofsky’s answer and
    there were no other issues of fact.
    The court held a hearing on Isaacs’s motion, deferred ruling, and
    ordered Yanofsky to file a response to the motion within fourteen days.
    But Yanofsky did not respond within the time set by the court. So Isaacs
    moved for sanctions for violating the court’s order and sought the entry of
    judgment in his favor. Yanofsky subsequently moved to strike Isaacs’s
    affidavit in support of summary judgment, arguing that Isaacs’s damages
    were unliquidated.
    The circuit court granted Isaacs’s motion for summary judgment and
    entered judgment in his favor.
    Analysis
    Yanofsky appeals the court’s judgment in Isaacs’s favor on both liability
    and damages. We affirm, without further discussion, the court’s judgment
    as to liability. But we agree with Yanofsky’s argument on damages and
    reverse in part.
    1 After the sanctions hearing, Yanofsky served responses to the discovery
    requests.
    2
    We have explained that “[e]ven in a circumstance in which a default
    judgment is entered against the defendant on the issue of liability, if jury
    trial has been demanded by either party, the defendant has the right to
    jury trial on the issue of damages when such damages are not liquidated.”
    Wolfe v. Steven A. Smilack, P.A., 
    100 So. 3d 166
    , 167 (Fla. 4th DCA 2012)
    (quoting Guirlinger v. Goldome Realty Credit Corp., 
    593 So. 2d 1135
    , 1137
    (Fla. 1st DCA 1992)).
    Both Isaacs and Yanofsky demanded a jury trial in their pleadings. And
    although the court struck Yanofsky’s answer, his demand for a jury trial
    remained viable. See 
    id. at 166
    (citing Powell v. S. Bell Tel. & Tel. Co., 
    448 So. 2d 72
    (Fla. 3d DCA 1984)).
    As a result, because the damages were not liquidated, it was improper
    to enter judgment based on the amount set forth in Isaacs’s damages
    affidavit. “Damages are liquidated when the amount to be awarded can be
    determined with exactness from a pleaded agreement between the parties,
    by an arithmetical calculation, or by application of definite rules of law.”
    DYC Fishing, Ltd. v. Martinez, 
    994 So. 2d 461
    , 462–63 (Fla. 3d DCA 2008)
    (citing Bowman v. Kingsland Dev., Inc., 
    432 So. 2d 660
    , 662 (Fla. 5th DCA
    1983)). “Damages are unliquidated ‘if the ascertainment of their exact sum
    requires the taking of testimony to ascertain facts upon which to base a
    value judgment.’” 
    Id. at 463
    (quoting 
    Bowman, 432 So. 2d at 663
    ).
    Here, the damages sought in the complaint were not liquidated, and
    the court erred in relying solely on Isaacs’s damages affidavit. Thus, the
    portion of the court’s judgment determining damages must be reversed.
    Conclusion
    The court’s judgment is affirmed in part and reversed in part. We affirm
    the court’s determination of liability. But we reverse the portion of the
    court’s judgment determining damages and remand the case for a trial on
    unliquidated damages.
    Affirmed in part, reversed in part, and remanded.
    LEVINE, C.J., and DAMOORGIAN, J., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    3
    

Document Info

Docket Number: 18-2963

Filed Date: 7/31/2019

Precedential Status: Precedential

Modified Date: 7/31/2019