Third District Court of Appeal
State of Florida
Opinion filed October 6, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1633
Lower Tribunal No. 15-26015
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Jonathan Michael Schuler,
Appellant,
vs.
Sandy T. Fox, P.A.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alan Fine,
Judge.
Litigation Lawyers, Professional Association, and Stephen B. Rakusin
(Ft. Lauderdale), for appellant.
Kogan Law, P.A., and Lyudmila Kogan (Hallandale), for appellee.
Before LINDSEY, MILLER, and LOBREE, JJ.
LINDSEY, J.
Appellant Jonathan Schuler (Defendant below) appeals from two non-
final orders that partially grant and partially deny his motion to quash service
of process and vacate a default final judgment. 1 Schuler argues the trial
court erred in denying his motion to vacate because the default judgment
improperly awarded unliquidated damages. Schuler also argues the trial
court erred in denying his motion to quash because the Return of Service
was facially invalid. We affirm because the contract damages are liquidated
since the exact amount can be determined from the pleadings. We also
conclude that Schuler failed to meet his burden to challenge service of
process.
I. BACKGROUND
In November 2015, Appellee Sandy T. Fox, P.A. (the “Law Firm”) filed
a Complaint against Schuler, its former client, to recover unpaid attorney’s
fees for legal services rendered in a paternity action. A clerk’s default was
entered against Schuler in January 2016, and a final judgment was entered
against Schuler in February 2016 in the amount of $59,494.73. This amount
included $39,286.36 stemming from a written contract for legal services and
1
We have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(5) (“Orders entered on an authorized and timely motion for relief
from judgment”) and 9.130(a)(3)(C)(i) (jurisdiction of the person, which
includes the validity of service of process).
2
$18,488.02 in equitable relief for services rendered in an appeal in the
paternity action.
In September 2020, the Law Firm, through counsel, filed two motions
for writs of garnishment directed at two of Schuler’s bank accounts. In
November 2020, Schuler filed a motion to quash service of process and to
vacate the 2016 final judgment. Schuler argued the default was improperly
entered because he was never served. More specifically, Schuler argued as
follows:
7. In the return, the process server incorrectly
claimed that an actual service of process was
effected on the Defendant with description of “Age:
44, Sex: M, Race/Skin Color: White, Height: 6’1,
Weight: 220, Hair: Balding, Glasses: N.”
8. However, Jonathan Schuler was living in Illinois.
On November 17, 2015, he was 32 years old, 6 feet
2 inches tall and weighed 178 pounds. The individual
Summons was not personally served upon Jonathan
Schuler. Apparently, the Summons and Complaint
were delivered to some other person who was not
authorized to accept service of process on behalf of
Jonathan Schuler.
(Emphasis in original).
Schuler also argued the lower court improperly entered a final
judgment without a trial and without 30 days’ notice on the Law Firm’s claim
3
for unliquidated damages in violation of Florida Rule of Civil Procedure
1.440(c). 2
The trial court conducted two separate hearings on Schuler’s motion.
First, on December 14, 2020, the court held a non-evidentiary hearing on the
damages issue. Following the hearing, and a little over a week later, the
court entered an order finding that the $39,286.36 in damages for breach of
contract (Count I) were liquidated, and therefore, the judgment was valid and
enforceable as to those damages. However, the court also found that the
$18,488.02 in damages for unjust enrichment (Count VI) and quantum meruit
(Count VII) were unliquidated, and the judgment was vacated as to those
damages. 3
2
Florida Rule of Civil Procedure 1.440(c), provides as follows:
Setting for Trial. If the court finds the action ready to be set for
trial, it shall enter an order fixing a date for trial. Trial shall be set
not less than 30 days from the service of the notice for trial. By
giving the same notice the court may set an action for trial. In
actions in which the damages are not liquidated, the order setting
an action for trial shall be served on parties who are in default in
accordance with Florida Rule of General Practice and Judicial
Administration 2.516.
3
Following the trial court’s determination that some of the damages were
unliquidated, the Law Firm elected to keep the breach of contract (Count I)
judgment in place and waive the equitable relief in Counts VI and VII. As an
additional measure, the Law Firm filed a Notice of Voluntary Dismissal of all
counts except Count I.
4
The second hearing occurred in April of 2021. The trial court held an
evidentiary hearing on the remaining issue in Schuler’s Motion—whether he
was personally served with the Complaint and Summons. At the hearing,
Schuler and Kathy Shapck, Schuler’s girlfriend at the time of service, testified
that he was living in Chicago on November 17, 2015, the date of service. In
support, Schuler produced Florida Power and Light records showing the
electricity had been turned off at his Hollywood, Florida address by
November 15.
The court also heard testimony from the process server, who testified
that his affidavit of service affirmed that he served Schuler because someone
at the Hollywood, Florida address identified himself as Schuler. Photos
taken by the process server were also admitted into evidence. The photos
showed a black SUV resembling Schuler’s black Porsche Cayenne and a
moving trailer. Schuler testified that his friend Brian packed the moving
trailer and that Brian transported Schuler’s Cayenne to Illinois. Finally,
Schuler’s checking account statements were admitted into evidence,
showing debit card charges in Florida between November 12 and November
17, including a November 17 charge in Hollywood, Florida at Panera.
Schuler testified that he had given his debit card to Brian. Nobody named
Brian testified at the hearing.
5
At the conclusion of the hearing, the court made the following
observations:
THE COURT: I will say this at this point: I accept the
evidence that Mr. Schuler was in the process of
moving during November, that the container that was
in the driveway was the container that either already
contained or was about to contain, during the course
of that day, the contents that were in the house that
he wanted moved to Chicago.
The black SUV may or may not have been Mr.
Schuler’s. It sure does look a lot like a Porsche
Cayenne, but I’m not an expert. And if it was, that’s
not definitive, because Mr. Schuler did testify that
he’s not the person that drove it to Chicago, that it
was either, I think he said his sister or Brian.
The problem here is that the -- all those credit card
receipts, excuse me, debit card charges long after
Mr. Schuler left. And his testimony that he gave the
debit card to Brian without more and without any
other explanation and without showing any debit or
credit card charges made in Chicago or somewhere
else is a tough hurdle when you have the burden of
showing by clear and convincing evidence that the
service was not made.
On July 14, 2021, the court entered a detailed order finding that the
process server’s Return of Service was regular on its face and that Schuler
failed to present clear and convincing evidence that he was not served.
Based on the evidence and testimony, the court did not find Schuler’s or
Shapck’s testimony credible. Accordingly, the court denied Schuler’s motion
to quash service of process and to vacate the entire default final judgment.
6
Schuler timely appealed.
II. ANALYSIS
Schuler raises two primary arguments on appeal. First, Schuler argues
that all claims for attorney’s fees are unliquidated damages claims. Second,
Schuler argues that the return of service was irregular on its face because
the description did not match his description, and moreover, that the
evidence reflected Schuler was not served.
1. Liquidated and Unliquidated Damages
Whether damages are liquidated or unliquidated is a legal issue
subject to de novo review. Law Offices of Granoff & Kessler, P.A. v. Glass,
305 So. 3d 345, 347 (Fla. 3d DCA 2020), reh’g denied (May 18, 2020),
review denied, SC20-734,
2021 WL 1157836 (Fla. Mar. 26, 2021) (citing
Musi v. Credo, LLC,
273 So. 3d 93, 95-96 (Fla. 3d DCA 2019)).
There is no dispute a default final judgment is void if it awards
unliquidated damages in violation of the notice and trial requirements in
Florida Rule of Civil Procedure 1.440(c). See, e.g., Rodriguez-Faro v. M.
Escarda Contractor, Inc.,
69 So. 3d 1097, 1098 (Fla. 3d DCA 2011) (“In
Florida, it is well settled that a defaulting party is entitled to notice and an
opportunity to be heard when the amount of damages is unliquidated.”).
7
In DYC Fishing, Ltd. v. Martinez,
994 So. 2d 461, 462-63 (Fla. 3d DCA
2008), this Court explained that the difference between liquidated and
unliquidated damages depends on whether the exact amount can be
determined from the pleadings:
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. See 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
663. When unliquidated damages must be
determined as a result of a default, the defaulting
party “is entitled to notice of an order setting the
matter for trial, and must be afforded an opportunity
to defend.” Viets v. Am. Recruiters Enters., Inc.,
922
So. 2d 1090, 1095 (Fla. 4th DCA 2006); see also
Bowman,
432 So. 2d at 663 (“A defaulting party has
a due process entitlement to notice and opportunity
to be heard as to the presentation and evaluation of
evidence necessary to a judicial determination of the
amount of unliquidated damages.”).
Here, the exact amount of the attorney’s fees can be determined from
the Complaint and its attachments, which include the parties’ Fee Agreement
and invoices. See Cellular Warehouse, Inc. v. GH Cellular, LLC,
957 So. 2d
662 (Fla. 3d DCA 2007) (finding that a damages claim for failure to make
payments under the terms of a contract was liquidated whereas damages for
lost business profits, stolen assets, and operating expenses were
8
unliquidated since they were not established by the parties’ agreement and
instead required testimony to ascertain the amount).
According to the Complaint, Schuler breached the attorney-client Fee
Agreement by failing to pay $36,631.15.4 The Fee Agreement, which is
attached to the Complaint, sets forth the agreed hourly rate for the attorneys
at the Law Firm. Moreover, over 100 pages of detailed invoices, which are
also attached to the Complaint, list the amounts charged over the course of
litigation for the various services at the applicable hourly rate. The invoices
also show that Schuler made several payments.5 Consistent with the
allegations in the Complaint, the invoices show that the final total balance
due is $36,631.15.
Even though the exact amount of damages can be determined from
the pleadings, Schuler argues that all attorney’s fees are unliquidated. We
disagree. Although “every claim of damages for the reasonable value of
services is a claim for unliquidated damages[,]” Bowman,
432 So. 2d at 663
4
Default judgment was entered in the amount of $39,286.36, which includes
the principal amount of $36,631.15 plus contractual interest and costs.
5
The Fee Agreement and invoices state that the client has ten days to notify
the Law Firm in writing of any errors or discrepancies in billing. Schuler does
not claim he disputed the billing.
9
(emphasis added), not every claim for attorney’s fees requires a
reasonableness determination.
In Glass, this Court explained the difference between an action against
a former client for attorney’s fees based on agreed hourly amounts and
reasonable attorney’s fees sought by a prevailing party against an opposing
party. 305 So. 3d at 347-50. This Court held that when fees are sought as
compensatory damages against a client for breach of an hourly rate contract,
as opposed to reasonable fees (e.g., prevailing party fees), no independent
expert testimony regarding reasonableness is necessary. Id. at 350.
Here, the Law Firm is not seeking reasonable fees, but fees from a
former client based on contractual hourly amounts and regular invoices for
time expended. The amount is not conjectural or uncertain until a fact finder
makes a value judgment. See Roggemann v. Boston Safe Deposit & Tr.
Co.,
670 So. 2d 1073, 1075 (Fla. 4th DCA 1996) (“A ‘reasonable attorney’s
fee’ is an unliquidated item of damages because testimony must be taken to
ascertain facts upon which a judge or jury can base a value judgment.”);
Papadakos v. Spooner,
186 So. 2d 786, 789 (Fla. 3d DCA 1966) (“However,
the amount of a reasonable attorney’s fee is entirely conjectural and is clearly
uncertain until either a judge or jury by an exercise of judgment makes a
determination.”).
10
Damages in this instance can be determined with exactness from the
Complaint and the attached Fee Agreement and invoices. 6 Since Schuler’s
default admits the allegations in the Complaint, and the fees require no
reasonableness determination, no evidentiary findings or testimony was
necessary to fix the amount. See Bowman,
432 So. 2d at 662 (“A default
admits every cause of action that is sufficiently well-pled to properly invoke
the jurisdiction of the court and to give due process notice to the party against
whom relief is sought. A default also admits the plaintiff’s entitlement to
liquidated damages due under the pleaded cause of action, but not
unliquidated damages.”). We therefore affirm the trial court’s denial of
Schuler’s motion to vacate the default judgment as to breach of contract
because the contractual attorney’s fees are liquidated damages.
2. Service of Process
6
Though Schuler has cited some authority for the proposition that attorney’s
fees sought against a former client are unliquidated, the fee agreements in
those cases did not involve an agreed hourly rate, as here, but instead
necessarily required a reasonableness determination to ascertain the exact
amount. See Ake v. Chancey,
13 So. 2d 6, 7 (Fla. 1943) (“The contract
provided that a reasonable compensation be paid Chancey, the amount of
which was to be fixed by H. C. Rorick as trustee for the bondholders’
committee.”); Papadakos v. Spooner,
186 So. 2d 786, 786–87 (Fla. 3d DCA
1966) (“The complaint brought by [the attorney] against [the clients] alleged,
in part, that . . . (5) [the client] agreed ‘that a reasonable fee would be paid
to [the attorney].’”).
11
In Koster v. Sullivan,
160 So. 3d 385, 389 (Fla. 2015), the Florida
Supreme Court explained that a return of service is regular on its face if it
includes the statutory factors contained in section 48.21, Florida Statutes:
The party who seeks to invoke the court’s jurisdiction
bears the burden of proving proper service. This
burden requires the party to demonstrate that the
return of service is, under section 48.21, facially valid
or regular on its face. A return of service that is
regular on its face must include the statutory factors
contained in section 48.21. If the return is regular on
its face, then the service of process is presumed to
be valid and the party challenging service has the
burden of overcoming that presumption by clear and
convincing evidence.
(Citations and quotation marks omitted).
Schuler argues that the Return of Service was not regular on its face
because the written description of the person served did not exactly match
Schuler’s description. A written description, however, is not one of the
factors listed in section 48.21, and Schuler has not cited any authority that
supports the proposition that a return of service containing a description that
does not exactly match the description of a person served renders the return
facially irregular. 7
7
The facial irregularity cases Schuler cites are distinguishable as they
involve failure to comply with the statutory factors required for service of
process. See Re-Emp. Servs., Ltd. v. Nat’l Loan Acquisitions Co.,
969 So.
2d 467, 472 (Fla. 5th DCA 2007) (“In the present case, the return of service
was defective on its face because it not only failed to accurately note the
12
The statutory factors set forth in section 48.21 are, in pertinent part, as
follows:
(1) Each person who effects service of process
shall note on a return-of-service form attached
thereto the date and time when it comes to hand, the
date and time when it is served, the manner of
service, the name of the person on whom it was
served, and, if the person is served in a
representative capacity, the position occupied by the
person. The return-of-service form must list all
pleadings and documents served and be signed by
the person who effects the service of process.
However, a person who is authorized under this
chapter to serve process and who effects such
service of process may sign the return-of-service
form using an electronic signature.
Here, the Return of Service included all the required statutory factors
in section 48.21 and was therefore regular on its face. Thus, Schuler bore
the burden of challenging the validity of service by clear and convincing
date and time the process came to hand, but also it actually stated that it
came to hand before the summonses were even issued.”); Romeo v. U.S.
Bank Nat. Ass’n,
144 So. 3d 585, 587 (Fla. 4th DCA 2014) (“Here, the
affidavits of service stated that the process server received the alias
summonses on September 10th, but they were not issued until September
12th. Thus, the affidavits are defective on their face under section 48.21
because they actually state that they ‘came to hand before the summonses
were even issued.’”); Bank of Am., N.A. v. Bornstein,
39 So. 3d 500, 504
(Fla. 4th DCA 2010) (“Neither the original nor the amended return of service
showed the absence of the statutorily prescribed superior classes of persons
who could have been served.”); Bennett v. Christiana Bank & Tr. Co.,
50 So.
3d 43, 45 (Fla. 3d DCA 2010) (“The process server’s notes contain no
evidence of compliance with [§ 48.031(1)(a), Fla. Stat. (2009)].”).
13
evidence. Based on the record, the trial court did not err in concluding that
Schuler failed to meet this burden. There was ample evidence below that
Schuler was personally served, including the process server’s testimony,
photographs, and Schuler’s checking account statements showing
transactions taking place in Florida. Moreover, the only evidence that
Schuler was in Chicago at the time of service was his own testimony and
that of Shapck, his girlfriend, neither of whom the trial court found credible.
Schuler produced no other corroborating evidence.
III. CONCLUSION
The breach of contract damages in this case are liquidated because
the exact amount can be determined from the pleadings; therefore, we affirm
the trial court’s denial of Schuler’s motion to vacate the default judgment as
to Count I (Breach of Contract). We also affirm the trial court’s denial of
Schuler’s motion to quash service of process because Schuler has not
shown that the Return of Service was facially irregular, and he did not carry
his burden of challenging the validity of service by clear and convincing
evidence.
Affirmed.
14
