Quick tips to avoid due process pitfalls with defaults and default judgments

You’ve got a defendant who won’t answer your case. You’re about to move for default and lock in what feels like a win—a default admission to all your allegations, pro confesso. Before you file that motion, remember these due process pitfalls and make sure you’re in the clear.

Bernhard Law FirmIn the end, the Court will set aside a default and default judgment as void, no matter how much time goes by, if: (i) the default was premature and void; (ii) the Court entered judgment for non-liquidated damages without due process, rendering the judgment void; and (iii) the judgment is void for lack of due process service and opportunity to be heard. If you have any questions about defaults and default judgments in Florida, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.

Will this survive the Florida legal standard on defaults and default judgments?

First, walk into the motion for default by thinking about the standard you will face on a challenge later. Under Florida law, there is a strong preference for lawsuits to be determined on the merits rather than by default judgment. Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So. 3d 567, 574 (Fla. 2010) (“Florida has a long standing public policy in favor of adjudication of disputes on the merits wherever possible.”); D’Alacio v. Intercontinental Bank, 541 So. 2d 1290, 1291 (Fla. 3d DA 1989) (holding court abused discretion in denying motion to vacate default, where party was unaware thatfilings were due).

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By Shealah Craighead – Photo of the Day: April 11, 2017 on whitehouse.gov, Public Domain, https://commons.wikimedia.org/w/index.php?curid=57970287

Thus, the Courts must liberally set aside defaults and any reasonable doubt should be resolved in favor of setting aside the default. Id.; Minda v. Minda, 190 So. 3d 1126, 1127 (Fla. 2d DCA 2016). As you draft your motion for default or default judgment, is there any reasonable doubt that the case is ready for it?

Is the default premature?

Where the Clerk or the Court enters default prematurely, the defaulted defendant is entitled to have the default and entry of final judgment set aside. Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. and Loan Ass’n, 558 So. 2d 153, 154 (Fla. 3d DCA 1990) (holding default should be set aside where response was served by mail on the 20th day following service of complaint); Gilmer v. Rubin, 98 So. 2d 367, 369 (Fla. 3d DCA 1957) (setting aside premature default where defendants had answered); see also Gibraltar Serv. Corp. v. Lone and Assocs., Inc., 488 So. 2d 582, 586 (Fla. 4th DCA 1986) (“if a responsive pleading was deposited in the mail on the same day that the clerk entered the default, the default should be set aside.”); Gavin v. Gavin, 456 So. 2d 535, 537–38 (Fla. 1st DCA 1984).

When the Clerk or the Court enters a default prematurely, the defendant need not show excusable neglect or meritorious defense in order to have the default set aside. Gavin v. Gavin, 456 So. 2d 535, 537–38 (Fla. 1st DCA 1984).

As you prepare to file for default or default judgment, double check the docket for a filed response, double check expiration of 20 days from a good service of process, and make sure you’ve allotted five (5) extra days for the mail rule. Avoid a premature motion for default. Avoid misleading the Clerk or the Court. If the default is premature or erroneously entered, it may void your ultimate judgment. Mr. Martinez at 154; Gilmer at 369; Gibraltar at 586; Gavin at 537–38. The Court must then set it aside.

Are you only seeking liquidated damages? Did you plead liquidated damages?

If the Court enters judgment for non-liquidated damages without due process notice and evidentiary hearing, the judgment may be rendered void. Even a party who is in default for failure to answer 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. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 666 (Fla. 3d DCA 2007) (holding trial court grossly abused its discretion by awarding unliquidated damages without giving defendant notice and opportunity to be heard); see also Pierce Hardy Ltd. P’ship v. Harrison Bros. Contracting, LLC, 13 So. 3d 175, 177 (Fla. 5th DCA 2009); Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662–64 (Fla. 5th DCA 1983).

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Remember, damages are not liquidated if their ascertainment requires taking of testimony to ascertain facts upon which to base a value judgment. Id.; see also Paramo v. Floyd, 154 So. 3d 477, 478 (Fla. 2d DCA 2015) (holding trial court erred when it awarded unliquidated damages without an evidentiary hearing).

Now check your complaint. Did it plainly request liquidated damages only, where the Court can just copy and paste the number in your wherefore clause? Or, does the complaint request unliquidated damages by the Court’s determination and discretion: e.g. in an amount to be determined at trial or only as this Court may deem just and equitable. Did you plead for unknown amounts, an unspecified financial benefit, damages from property of accruing value? Under these allegations, the Court can only determine an amount of damages on additional evidence, meaning you need a special evidentiary hearing to determine those amounts. Otherwise, entry of a default judgment on unliquidated damages is a violation of the defendant’s due process rights and a gross abuse of discretion rendering the judgment void. Cellular at 666; Pierce Hardy at 177; Bowman at 662–64; Paramo at 478. Those default judgments will be set aside.

Did you give all other due process when you could?

The Courts lean to holding a judgment void for lack of due process service and opportunity to be heard, even in events and proceedings before the judgment. Violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void. Goodman v. Goodman, 126 So. 3d 310, 314 (Fla. 3d DCA 2013) (holding judgment void for lack of notice); see also ATM Ltd. v. Caporicci Footwear Ltd., Corp., 867 So. 2d 413, 413 (Fla. 3d 2003) (for the concomitant concept that a judgment is void and must be set aside where a party is not made a party to the action).

A final judgment entered without adequate notice of the hearing and an opportunity to be heard is void. U.S. Bank Nat’l Ass’n v. Proenza, 157 So. 3d 1075, 1076 (Fla. 3d DCA 2015) (reversing denial of motion to set aside judgment, where it was entered without notice to the parties in violation of their due process rights, and thus was void); Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So. 3d 1097, 1098 (Fla. 3d DCA 2011) (holding defaulting party is entitled to notice and opportunity to be heard, and lack thereof renders judgment voice). Relief from void judgments may be granted at any time. Reyes . Aqua Life Corp., 209 So. 3d 47, 51 (Fla. 3d DCA 2016) (reversing order denying motion to vacate judgment for lack of due process, as judgment was void and subject to challenge at any time); Hendrix v. Dep’t Stores Nat’l Bank, 177 So. 3d 288, 290 (Fla. 4th DCA 2015) (vacating default and default judgment on holding that they are void if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard).

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By Coolcaesar at the English language Wikipedia, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=15851481

Looking at your case, do you want to give another notice of hearing and opportunity to be heard? Did you send a notice of hearing for your motion for default? They may not be necessary, but could subject your judgment to a reversal for lack of due process in early proceedings.

Remember, the Court must set aside a default or default judgment as void, if: (i) the default was premature and void; (ii) the Court entered judgment for non-liquidated damages without due process, rendering the judgment void; or (iii) the judgment is void for lack of due process service and opportunity to be heard. If you have any questions about defaults and default judgments in Florida, please contact Bernhard Law Firm at 786-871-3349, abernhard@bernhardlawfirm.com, www.bernhardlawfirm.com.

Bernhard Law Firm

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