CRIMSON 27, LLC v. TAYLOR MADE LENDING, LLC, AND KALVAITIS HOLDINGS, LLC

Third District Court of Appeal
State of Florida
Opinion filed June 8, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2360
Lower Tribunal No. 21-5904
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Crimson 27, LLC,
Appellant,
vs.
Taylor Made Lending, LLC, and Kalvaitis Holdings, LLC,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Antonio Arzola, Judge.
Coffey Burlington, P.L., and Jeffrey B. Crockett, for appellant.
Seiler, Sautter, Zaden, Rimes & Wahlbrink, and Steven A. Wahlbrink
(Fort Lauderdale), for appellee Kalvaitis Holdings, LLC.
Before LOGUE, HENDON, and BOKOR, JJ.
PER CURIAM.
Appellant Crimson 27, LLC (“Crimson”) appeals the trial court’s denial
of its motion to vacate a summary final judgment of foreclosure and
foreclosure sale. We affirm in part and reverse in part, only as to the portion
of the summary final judgment of foreclosure that liquidated previously
unliquidated attorney’s fees and costs.
We find no legal basis to set aside the foreclosure sale, which resulted
in a sale to Appellee/Third-Party Purchaser, Kalvaitis Holdings, LLC,
because Crimson was properly served through its registered agent and was
defaulted when it failed to defend. Nevertheless, even though it had been
properly defaulted, Crimson remained entitled to notice and an opportunity
to be heard regarding the lender’s claims for any unliquidated damages,
including attorney’s fees. Here, although the certificate of service indicates
that the lender’s summary judgment motion for foreclosure was mailed to
Crimson at the address of its manager, Crimson filed an affidavit denying
that the motion was ever received. Crimson is entitled to an evidentiary
hearing on the issue of whether notice regarding the unliquidated damages
was proper and, if not, then proper notice and an opportunity to be heard
regarding the lender’s claim for unliquidated damages. See Cellular
Warehouse Inc. v. GH Cellular LLC, 957 So. 2d 662, 666 (Fla. 3d DCA 2009)
(“It is well settled that a defaulting party has a due process entitlement to
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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.”) (internal quotation marks omitted). See also Oshana v. Lopiano,
314 So. 3d 311, 312 (Fla. 3d DCA 2020) (“Although we review a trial court's
ruling on motions for relief from judgment for an abuse of discretion, once a
party moving under rule 1.540(b) raises a colorable entitlement to relief
exercising that discretion requires holding an evidentiary hearing.”). Such a
failure to receive notice as to the unliquidated damages “does not void the
entire judgment, only that portion awarding unliquidated damages.” Cellular
Warehouse, Inc., 957 So. 2d at 666. See also § 702.036(1), Fla. Stat.
Accordingly, we reverse in part, only as to the portion of the summary
final judgment of foreclosure that liquidated previously unliquidated
attorney’s fees and costs, and remand for an evidentiary hearing to resolve
the issue of fact regarding whether Crimson received the appropriate notice.
We affirm in all other respects.
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