AT HOME CARE LLC v. OWEN CARHART

Third District Court of Appeal
State of Florida
Opinion filed May 19, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0642
Lower Tribunal No. 17-7226
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At Home Care LLC, et al.,
Appellants,
vs.
Owen Carhart,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
The Law Offices of Alan Dagen, P.A., and Alan P. Dagen (Weston), for
appellants.
Ainsworth + Clancy, PLLC, and Ryan M. Clancy, for appellee.
Before FERNANDEZ, LOGUE, and MILLER, JJ.
MILLER, J.
Appellant, Christie Samoville, challenges a final judgment rendered in
favor of appellee, Owen Carhart. We affirm without further discussion on all
issues save one. We conclude the lower tribunal erred in awarding Carhart
unliquidated damages in the absence of proof of the same adduced at a
properly noticed evidentiary hearing. 1 See DYC Fishing, Ltd. v. Martinez,
994 So. 2d 461, 463 (Fla. 3d DCA 2008) (“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.’”) (quoting Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090,
1095 (Fla. 4th DCA 2006)); Cellular Warehouse, Inc. v. GH Cellular, LLC,
957 So. 2d 662, 666 (Fla. 3d DCA 2007) (“It is well settled that 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.’”) (quoting Bowman
v. Kingsland Dev., Inc., 432 So. 2d 660, 663 (Fla. 5th DCA 1983)); Petrovsky
v. HSBC Bank, USA, 185 So. 3d 700, 701 (Fla. 4th DCA 2016) (Damages
that “are not liquidated damages . . . require a hearing. Absent an
1
Carhart argues the damages were derived from an earlier hearing that
yielded a subsequently vacated judgment. The disparity between the
damages reflected in the earlier judgment and those awarded here, however,
precludes such a conclusion.
2
evidentiary hearing, the . . . award will be reversed for a hearing unless there
is an indication that the right to a hearing was waived.”) (citations omitted).
We therefore reverse the final default judgment to the extent it awarded
unliquidated damages and remand for an evidentiary hearing.
Reversed and remanded.
3