Winding Wood Condominium VI Association, Inc. v. Walls , 2016 Fla. App. LEXIS 10467 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WINDING WOOD CONDOMINIUM VI )
ASSOCIATION, INC., a Florida non-profit )
corporation, )
)
Appellant, )
)
v. ) Case No. 2D15-2959
)
LINDA WALLS, )
)
Appellee. )
)
Opinion filed July 8, 2016.
Appeal from the Circuit Court for Pinellas
County; Bruce Boyer, Judge.
Keith D. Skorewicz and H. Web Melton,
III, of Bush Ross, P.A., Tampa, for
Appellant.
Lynn E. Hanshaw of Langford & Myers,
P.A., Tampa, for Appellee.
WALLACE, Judge.
Winding Wood Condominium VI Association, Inc. (Winding Wood),
appeals a final judgment entered in favor of Linda Walls following the entry of a clerk's
default. Winding Wood challenges the trial court's order denying its motion to set aside
the default. Winding Wood also challenges the trial court's entry of a judgment against
it for unliquidated damages without proper notice and a jury trial. We affirm the order
denying the motion to set aside the default, but we reverse the entry of the final
judgment to the extent the judgment awarded money damages and attorney's fees in
favor of Ms. Walls and remand for a jury trial on the issue of damages and
reconsideration of the award of attorney's fees. We affirm the final judgment in all other
respects.
I. THE FACTS AND THE PROCEDURAL BACKGROUND
Ms. Walls filed a complaint asserting four claims against Winding Wood:
Count One, breach of contract; Count Two, negligence and breach of fiduciary duty;
Count Three, breach of the common law obligation of good faith and fair dealing; and
Count Four, injunctive relief. The claims arose out of alleged water intrusion into Ms.
Walls' condominium unit and the failure of Winding Wood to take appropriate action to
address the problem. Ms. Walls requested a jury trial on the claims alleged in counts
one, two, and three of the complaint.
Winding Wood was served with the summons and a copy of the complaint
on December 2, 2014. After Winding Wood failed to file a timely response to the
complaint, Ms. Walls obtained a clerk's default against Winding Wood on December 31,
2014. Winding Wood filed a motion to set aside the default on January 14, 2015.
Winding Wood alleged that its failure to respond timely to the complaint resulted from
excusable neglect, and it supported the motion with an affidavit from its president.
At a hearing held on Winding Wood's motion on April 28, 2015, the trial
court denied the motion to set aside the default. The trial court entered an order
specifically finding that Winding Wood had failed to establish excusable neglect or a
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meritorious defense to warrant setting aside the default.1 The trial court ruled that there
was nothing incorrect about the clerk's default and that the default should stand.
While the motion to set aside the default was pending, Ms. Walls filed a
"Plaintiff's Motion for Default Summary Judgment" and a supporting affidavit. In her
motion, Ms. Walls reiterated the facts alleged in her complaint and asserted that she
was entitled to a summary judgment for damages and injunctive relief. In her affidavit,
Ms. Walls claimed entitlement to damages stemming from the loss of use of her
condominium unit, for extra expenses for meals consumed at restaurants, for
maintenance fees and assessments, and for costs related to determining the source of
the leak. She also requested reasonable attorney's fees and costs. Ms. Walls stated
that her damages would continue to accrue until the repair of the exterior wall fronting
her unit was completed, and she requested injunctive relief requiring Winding Wood to
repair the exterior wall so that she could complete the necessary repairs within the unit.
Ms. Walls' counsel also filed an affidavit in support of a claim for reasonable attorney's
fees in the amount of $10,078. An affidavit from Winding Wood's president disputed the
facts asserted in the affidavit and the calculation of the damages claimed by Ms. Walls.
On May 14, 2015, Winding Wood filed a "Motion in Opposition to Motion
for Default Summary Judgment and Motion to Dismiss/Stay Based on Subject Matter
Jurisdiction." In this motion, Winding Wood argued for the first time that despite the trial
court's denial of the motion to set aside the default, any judgment entered against it
would be "void" because Ms. Walls' counsel failed to serve Winding Wood's counsel
1
Ms. Walls did not dispute that Winding Wood had acted with due
diligence in moving to set aside the default.
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with notice of the application for default. Winding Wood cited two cases from this court
in support of its argument: Makes & Models Magazine, Inc. v. Web Offset Printing Co.,
13 So. 3d 178 (Fla. 2d DCA 2009), and U.S. Bank National Ass'n v. Lloyd, 981 So. 2d
633 (Fla. 2d DCA 2008). Winding Wood also attached affidavits and copies of e-mails
in support of its claim that Ms. Walls' counsel had knowledge that Winding Wood was
represented by counsel with regard to Ms. Walls' claims and that it intended to defend
any action filed to assert those claims. In addition, Winding Wood claimed for the first
time (as a meritorious defense) that the trial court lacked subject matter jurisdiction over
Count Four seeking injunctive relief because Ms. Walls was required to submit that
claim to arbitration under section 718.1255(4)(a), Florida Statutes (2014), and to provide
it with prearbitration notice in accordance with section 718.1255(4)(b)(1), (3).
The trial court conducted a hearing on Ms. Walls' motion for "default
summary judgment." There was no testimony taken at this hearing. The trial court
decided the matter on the basis of the motion and the affidavits filed in support thereof.
After the hearing, the trial court entered a "Default Final Judgment" in favor of Ms. Walls
and against Winding Wood. The "Default Final Judgment" ordered Winding Wood to
"take all necessary steps to repair the exterior leak occurring at [Ms. Walls' condominium
unit] . . . within thirty (30) days of the date of this order." In addition, the trial court
awarded Ms. Walls $20,941.54 "representing damages through January 21, 2015, as
identified in Plaintiff's Affidavit in Support of Motion for Summary Judgment" and
reasonable attorney's fees in the amount of $5546.20. This appeal followed.
II. WINDING WOOD'S APPELLATE ARGUMENTS
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On appeal, Winding Wood argues that the trial court erred in failing to set
aside the default because it established grounds for relief from the default, including
excusable neglect, a meritorious defense, and due diligence in moving to set aside the
default. In addition, Winding Wood argues that the trial court erred in denying the
motion to set aside the default because Ms. Walls' counsel knew that Winding Wood
was represented by counsel and intended to defend the action but counsel failed to
serve notice of the application for the default as required. Finally, Winding Wood
argues that because the damages claimed by Ms. Walls were unliquidated in amount,
the trial court erred in entering a judgment against it without conducting a jury trial to
determine the amount of damages.2
III. DISCUSSION
A. The Denial of the Motion to Set Aside the Default
We review an order denying a motion to vacate a clerk's default under an
abuse of discretion standard. Hornblower v. Cobb, 932 So. 2d 402, 405 (Fla. 2d DCA
2006) (citing Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206, 207-08 (Fla. 2d DCA
1990)). Further, we apply the well-established principle preferring the decision of an
action on its merits. Id. at 405-06.
We first address Winding Wood's argument regarding the trial court's
refusal to set aside the default based on the claim of excusable neglect, a meritorious
defense, and due diligence in moving to set aside the default. It would add nothing to
the jurisprudence of this state to detail the extensive factual background underlying
2
Winding Wood does not challenge the propriety of the trial court's award
of injunctive relief based upon the default. Thus we do not address this issue.
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Winding Wood's assertions of excusable neglect and a meritorious defense. It is
sufficient to say that we conclude that the trial court did not abuse its discretion in
finding that Winding Wood failed to establish either of these prerequisites for setting
aside the default. Winding Wood's appellate arguments in this regard do not warrant
further discussion.3
We now consider Winding Wood's argument that the trial court should
have set aside the default because Ms. Walls' counsel knew that Winding Wood was
represented by counsel and that it intended to defend the claims; nevertheless, Ms.
Walls' counsel failed to serve notice of application for the default. "If the plaintiff is
aware that the defendant is represented by counsel and intends to defend the litigation
on the merits, it is required to serve the defendant with notice of the application for
default and to present the matter to the court for entry of the default." Makes & Models,
13 So. 3d at 181. "A default that does not comply with this requirement 'must be
vacated without regard to whether the defendant can establish a meritorious defense or
whether the defendant can demonstrate inadvertence or excusable neglect.' " Id.
(quoting Lloyd, 981 So. 2d at 640).
In its motion to set aside the default, Winding Wood did not raise an issue
under Makes & Models and Lloyd about Ms. Walls' failure to provide notice of her intent
3
As noted above, Winding Wood first argued that Ms. Walls was required
to arbitrate her claim for equitable relief and to provide it with written prearbitration
notice in its "Motion in Opposition to Motion for Default Summary Judgment and Motion
to Dismiss/Stay based on Subject Matter Jurisdiction" after the trial court had denied its
motion to set aside default. As discussed below, Winding Wood's arguments asserting
additional grounds to set aside the default in this motion were untimely. Moreover,
section 718.1255 does not apply to Ms. Walls' claim for equitable relief because her
demand that Winding Wood repair a common area does not relate to a "dispute" within
the meaning of the statute. See § 718.1255(1).
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to seek a default. Instead, Winding Wood relied exclusively—and unsuccessfully—on
its argument that it was entitled to relief based upon excusable neglect, a meritorious
defense, and its due diligence in moving to set aside the default.
The argument based on Ms. Walls' failure to give notice of the application
for the default arose after the trial court had denied Winding Wood's motion to set aside
the default. At that point, Winding Wood might have filed a motion for reconsideration of
the trial court's denial of its motion to set aside the default and set the matter for a
hearing. Although the trial court would not have been required to hear the motion to
reconsider its denial of Winding Wood's request to set aside the default, it had the
discretion to do so. See The Panama City Gen. P'ship v. Godfrey Panama City Inv.,
LLC, 109 So. 3d 291, 292 (Fla. 1st DCA 2013) ("[W]hile 'a legally insufficient motion to
vacate a default cannot be corrected as a matter of right by a motion for reconsideration
or hearing, a trial court does have the inherent discretionary power to reconsider any
order entered prior to the rendition of the final judgment in the cause.' " (quoting City of
Hollywood v. Cordasco, 575 So. 2d 301, 302 (Fla. 4th DCA 1991))).
But Winding Wood did not file a motion for reconsideration and set it for
hearing. Instead, Winding Wood filed a document titled "Motion in Opposition to Motion
for Default Summary Judgment and Motion to Dismiss/Stay Based on Subject Matter
Jurisdiction." Winding Wood did not set this "motion" for hearing; it just argued the
matter at the hearing on Ms. Walls' "Plaintiff's Motion for Default Summary Judgment."
Counsel for Ms. Walls responded to the argument, asserting as an issue of fact that it
was by no means clear that counsel would be representing Winding Wood in the
defense of Ms. Walls' claims. The trial judge did not address Winding Wood's argument
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based on Makes & Models and Lloyd either orally at the hearing or in the written
judgment that followed. Accordingly, whatever merit Winding Wood's argument may
have had, we are unable to determine from the record whether or not the trial court
chose to exercise its discretion to consider the issue.
After a careful review of the record, we conclude that Winding Wood never
properly raised the issue about Ms. Walls' failure to give notice of the application for
default in the trial court because it did not raise the issue in its motion to set aside the
default or in a motion for reconsideration. See Tillman v. State, 471 So. 2d 32, 35 (Fla.
1985) ("In order to be preserved for further review by a higher court, an issue must be
presented to the lower court and the specific legal argument or ground to be argued on
appeal or review must be part of that presentation if it is to be considered preserved.").
Even if Winding Wood preserved the issue by raising it in its "Motion in Opposition to
Motion for Default Summary Judgment," it did so at a time when the trial court had the
discretion to decline to consider the argument. See Panama City, 109 So. 3d at 292.
We also note that counsel for Ms. Walls disputed the factual basis
underlying Winding Wood's argument. Although both parties relied on an exchange of
e-mails in support of their positions, neither of them offered any further evidence in
support of their contentions or asked the trial court to resolve the underlying disputed
question of fact.
In addition, we disagree with Winding Wood's contention that failure to
provide notice of the default would render any subsequent judgment "void." Instead, the
asserted procedural deficiency was a matter that Winding Wood might have argued as
a ground for setting aside the default. See Makes & Models, 13 So. 3d at 181; Lloyd,
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981 So. 2d at 640. Under these circumstances, we do not find an abuse of discretion or
reversible error in a refusal by the trial court to consider the matter or in a ruling against
Winding Wood if the trial court actually considered the issue.
B. The Entry of Judgment for Unliquidated Damages without a Trial
Winding Wood argues that the trial court erred in entering the "Default
Final Judgment" in favor of Ms. Walls for damages and attorney's fees that were
unliquidated in amount without conducting a jury trial on the issue of damages. At the
hearing held on Ms. Walls' motion for "default summary judgment," Winding Wood
objected to the entry of the requested judgment and pointed out that the damages
requested by Ms. Walls were unliquidated in amount and that she had requested a jury
trial on the claims asserted in counts one, two, and three of her complaint. Winding
Wood argued that it would be error for the trial court to enter a judgment for unliquidated
damages under these circumstances.
With regard to the entry of a judgment based on a default, this court has
explained as follows:
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. 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. . . . [D]amages are not liquidated if the
ascertainment of their exact sum requires the taking of
testimony to ascertain facts upon which to base a value
judgment.
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Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman
v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)). "Whether the
damages are liquidated by the complaint is a question of law." Maggiano v. Whiskey
Creek Prof'l Ctr., LLC, 160 So. 3d 535, 536 (Fla. 2d DCA 2015) (citing Talbot v.
Rosenbaum, 142 So. 3d 965, 967 (Fla. 4th DCA 2014)).
None of the sums comprising the $20,941.54 award of damages made to
Ms. Walls could have been ascertained from the complaint. The individual amounts
awarded by the court were as follows: (1) the loss of use of the condominium unit, $468
per month for seven months, $3276; (2) extra expenses for food consumed at
restaurants for seven months, $11,942.14; maintenance fees and assessments,
$5544.40; and (4) costs incurred to determine the source of the leak, $179. All of the
damages awarded were unliquidated in amount. The trial court awarded Ms. Walls an
additional $5546.20 for attorney's fees and costs. The claims for reasonable attorney's
fees and costs are considered to be unliquidated damages. See Paramo v. Floyd, 154
So. 3d 477, 478 (Fla. 2d DCA 2015) (citing Holiday Gulf Builders, Inc. v. Tahitian
Gardens Condo., Inc., 443 So. 2d 143, 145 (Fla. 2d DCA 1983)). Thus Winding Wood
was entitled to proper notice and a jury trial on the unliquidated damages sought by Ms.
Walls, despite the entry of the default. See Fla. R. Civ. P. 1.440(c) ("In actions in which
the damages are not liquidated, the order setting the action for trial shall be served on
parties who are in default in accordance with rule 1.080."); Holiday Gulf Builders, 443
So. 2d at 144 (holding "that the trial court erred in entering a final [default] judgment
awarding damages and attorney's fees . . . without submitting the issue of damages to a
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jury [where the plaintiff] requested a jury trial in two of the three counts of the
complaint").
IV. CONCLUSION
For the foregoing reasons, we affirm the order denying Winding Wood's
motion to set aside the default. However, we reverse the "Default Final Judgment" to
the extent that it awarded money damages and attorney's fees to Ms. Walls and remand
for a jury trial on the issue of damages and reconsideration of the award of attorney's
fees. We affirm the "Default Final Judgment" in all other respects.
Affirmed in part, reversed in part, and remanded.
MORRIS and BLACK, JJ., Concur.
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