final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 14-27781 Barbara
M. Smith, for appellants.
Victoria Méndez, City Attorney, and Kerri L. McNulty
and Rachel S. Glorioso Dooley, Assistant City Attorneys, for
ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
Beverly, LLC, et al., who are the appellants here and the
defendants below, appeal the trial court's order denying
their motion for relief from a final monetary judgment
entered against them on December 24, 2015, after the entry of
a default on February 23, 2015, and a default final judgment
on June 4, 2015. In this appeal, the appellants do not
contest the entry of the default or the default final
judgment. What they contest is the entry of a final
monetary judgment on December 24, 2015, awarding damages in
favor of the appellee, the City of Miami, in the amount of
$3, 126, 387.62.
appellants contend that the damages are unliquidated damages,
requiring an evidentiary hearing and an opportunity to be
heard. Because no evidentiary hearing was conducted, and the
appellants were not given an opportunity to contest the
amount of the City of Miami's damages, the appellants
argue that the final monetary judgment is void. We conclude,
however, that the damages were liquidated, and although the
appellants received notice and were present when the
calculation of the damages was addressed, they failed to
object or offer any contrary evidence or proof. Thus, the
final monetary judgment is, at best, voidable, not void. The
appellants' failure to move to vacate or set aside the
final monetary judgment for more than one year after the
judgment was entered was, therefore, untimely. Accordingly,
operative facts are as follows. On October 29, 2014, the City
of Miami filed a complaint against the appellants seeking
abatement of a public nuisance, injunctive relief, and
monetary damages based on substantial and continuing fines
for code violations at various apartment complexes owned by
the appellants. Attached to the complaint were detailed
reports regarding each property, the specific infractions,
information on the liens placed on each property as a
penalty, and the amount and nature of each lien (whether the
lien was for a specific amount or whether it was a
"rolling lien" with a specific per diem accrual
default was entered on February 23, 2015, and a default final
judgment was entered on June 20, 2015. After the
appellants' initial appeal was dismissed on December 21,
2015, the trial court entered a final judgment on December
24, 2015, granting a permanent injunction and a money
judgment against the appellants and in favor of the City of
December 28, 2016, over one year after the entry of the final
monetary judgment, the appellants filed their motion to
vacate or set aside the judgment under Florida Rule of Civil
Procedure 1.540(b). Rule 1.540(b)(1-3), however, is
unavailable to the appellants as they untimely filed their
motion to vacate more than one year after the final judgment
was entered. The appellants have not alleged that the
judgment has been satisfied or released, so rule 1.540(b)(5)
also does not apply. Thus, the only possible remedy available
to the appellants under rule 1.540(b) is under subsection
(4), which permits a court to grant relief from a void
judgment, decree, or order if the motion to vacate is filed
within "a reasonable time." The issue in this
appeal is therefore whether the final monetary judgment is a
judgment is one entered without subject matter or personal
jurisdiction, see Sterling Factors Corp. v. U.S.
Nat'l Ass'n, 968 So.2d 658, 665 (Fla. 2d DCA
2007), or where there has been a violation of the due process
guaranty of notice and an opportunity to be heard. Viets
v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095
(Fla. 4th DCA 2006). Because there is no dispute that the
trial court had jurisdiction over the matter and the parties,
this appeal turns on whether the damages awarded to the City
of Miami were liquidated or unliquidated, and if liquidated,
whether the failure to conduct an evidentiary hearing or
otherwise provide the appellants with an opportunity to
contest the calculation of the damages amounts to a violation
of due process.
Were the damages liquidated or
damages are liquidated or unliquidated is a question of law
reviewable de novo. R & B Holding Co., Inc. v.
Christopher Advert. Grp., Inc., 994 So.2d 329, 331 (Fla.
3d DCA 2008). Damages are liquidated when the amount to be
awarded can be determined with exactness from the cause of
action as pled, by an agreement by the parties, by an
arithmetical calculation, or through application of definite
rules of law. Wells Fargo Bank, Nat'l Ass'n v.
Sawh, 194 So.3d 475, 480 (Fla. 3d DCA 2016);
Bodygear Activewear, Inc. v. Counter Intelligence
Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006).
Damages are not liquidated if testimony is required to
determine how to evaluate the damages. Ciprian-Escapa v.
City of Orlando, 172 So.3d 485, 489 (Fla. 5th DCA 2015).
For example, a demand for attorney's fees and costs has
been held to be a request for unliquidated damages ...