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Miami Beverly LLC v. City of Miami

Florida Court of Appeals, Third District

September 6, 2017

Miami Beverly LLC, et al., Appellants,
v.
City of Miami, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lower Tribunal No. 14-27781 Barbara Areces, Judge.

          Renee M. Smith, for appellants.

          Victoria Méndez, City Attorney, and Kerri L. McNulty and Rachel S. Glorioso Dooley, Assistant City Attorneys, for appellee.

          Before ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.

          ROTHENBERG, C.J.

         Miami 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.[1] 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.

         The 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, we affirm.

         The 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 rate).

         A 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 Miami.

         On 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 void judgment.

         A void 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.

         I. Were the damages liquidated or unliquidated?

         Whether 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 ...


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