Irving Himmelberg v. Kristina Himmelberg and Kimberly Himmelberg

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2829
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IRVING HIMMELBERG,
Appellant,
v.
KRISTINA HIMMELBERG and
KIMBERLY HIMMELBERG,
Appellees.
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On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.
May 3, 2018
PER CURIAM.
Appellant seeks review of the final judgment awarding more
than $200,000 to Appellees. We affirm.
Appellant is Appellees’ paternal grandfather. He set up
custodial accounts under the Uniform Transfers to Minors Act for
Appellees when they were infants. Appellant deposited money
into the accounts, but he subsequently withdrew the money to
reimburse his son for child support and other expenses that the
son was ordered to pay to Appellees’ mother in their divorce
proceeding. After Appellees turned 18 and learned of the
withdrawals, they sent letters to Appellant demanding that he
return the money taken from their accounts. When Appellant did
not respond to the letters, Appellees filed a complaint seeking
damages for (among other claims) civil theft under section
772.11, Florida Statutes. When Appellant did not respond to the
complaint, a clerk’s default and a “final default judgment” 1 were
entered. Appellant filed a motion to set aside the default
judgment, which the trial court denied after a hearing. Then,
after an evidentiary hearing on damages, see Fla. R. Civ. P.
1.500(e), the trial court entered a final judgment awarding
Appellees more than $200,000, which included treble damages for
the civil theft and attorneys’ fees. This appeal followed.
Appellant raises four issues on appeal: (1) the final judgment
was an untimely amendment to the default judgment; (2)
Appellees failed to establish their entitlement to treble damages;
(3) the trial court lacked personal jurisdiction over him; and (4)
the damage award was excessive. We affirm the first and third
issues without discussion; we affirm the second issue because the
default—which Appellant does not challenge on appeal—
precluded Appellant from contesting the well-pled allegations in
the complaint, including the allegations of civil theft from which
the award of treble damages legally flowed, see Florida Bar v.
Porter, 684 So. 2d 810, 813 n.4 (Fla. 1996) (“[T]he entry of a
default precludes a party from contesting the existence of a
plaintiff’s claim and liability thereon.”); Rich v. Spivey, 922 So. 2d
326, 327 (Fla. 1st DCA 2006) (“A default admits liability as
claimed in the pleading by the party seeking affirmative relief
against the party in default.” (quoting Sec. Bank, N.A. v.
BellSouth Adver. & Publ’g Corp., 679 So. 2d 795, 803 (Fla. 3d
DCA 1996)); and, we affirm the fourth issue because although
there was conflicting evidence of the amount of money Appellant
withdrew from Appellees’ accounts and the purposes for which
some of the money was used, the total damage award in the final
1 Despite its title, this judgment was not a “final” judgment
because it merely determined Appellant’s liability for the claims
alleged in Appellees’ complaint. The judgment did not award a
specific amount of damages, nor could it because the damages
sought in the complaint were unliquidated.
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judgment is supported by competent substantial evidence, see
Pearce & Pearce Inc. v. Kroh Bros. Dev. Co., 474 So. 2d 369, 371
(Fla. 1st DCA 1985) (“The general rule is that the extent of
damages determined by a trial court is a question of fact which
will be affirmed on appeal if supported by competent, substantial
evidence.”).
AFFIRMED.
WETHERELL, RAY, and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Parker B. Smith of Parker B. Smith, P.A., Destin, for Appellant.
Timothy M. Chiasson of Law Office of Daniel C. Perri, Shalimar,
for Appellees.
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