FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Paul L. Huey, Judge.
E. Samis and Frank E. Dylong, Jr. of Traub Lieberman Straus
& Shrewsberry LLP, St. Petersburg; and Starr L. Brookins
and William G.K. Smoak of Smoak, Chistolini & Barnett,
PLLC, Tampa, for Appellants.
Lahlou-Amine (withdrew after briefing) and George A. Vaka of
Vaka Law Group, P.L., Tampa (substituted as counsel of
record), for Appellee.
Rodriguez and Jose Hernandez appeal from a trial court order
denying their motion to set aside a default and resulting
judgment for money damages in favor of Jeffrey Thompson. To
the extent the order declined to set aside the default as to
liability, we affirm it without comment. Because the record
contains no evidence that Ms. Rodriguez and Mr. Hernandez
were provided notice of the trial on damages, however, we
reverse the order insofar as it refused to set aside the
judgment and remand for a new trial on damages.
Thompson brought a negligence action against Ms. Rodriguez
and Mr. Hernandez to recover for injuries he suffered in an
auto accident. Ms. Rodriguez and Mr. Hernandez were both
validly served with the complaint. Each of them filed
handwritten, pro se documents in which they generally denied
liability. Although they each were served with many other
pleadings, papers, and orders requiring their attention to
and appearance in the trial court proceedings, the trial
court did not hear further from either of them until the
motion that is the subject of this appeal was filed.
Thompson sought and obtained a default on liability.
Thereafter, the court entered an order setting a trial on the
issue of damages. There is no certificate of service for this
order in the record or entered on the case progress docket.
And although the bottom of the order has a note that reads
"conformed copies to"- indicating that conformed
copies of the order were to be delivered to recipients listed
beneath the note-there are no names, addresses, or other
information under that note that would indicate to whom, if
anyone, the order was mailed or otherwise delivered. After a
jury trial, at which neither Ms. Rodriguez nor Mr. Hernandez
was present, the trial court entered a judgment against them
for $1, 190, 000.
Rodriguez and Mr. Hernandez later appeared through counsel
and filed a motion to set aside the default and the resulting
judgment. In relevant part, they argued that the judgment
should be set aside under Florida Rule of Civil Procedure
1.540(b) because it was void insofar as they had not been
served with the order setting the damages trial. They each
filed an affidavit swearing that they had not received a copy
of the order setting the damages trial and had not otherwise
received notice of that trial. After a nonevidentiary
hearing, the trial court denied the motion.
order denying a rule 1.540(b) motion is ordinarily reviewed
for an abuse of discretion. Carmona v. Wal-Mart Stores,
E., LP, 81 So.3d 461, 464 (Fla. 2d DCA 2011).
"Where a final judgment is void, however, the trial
court has no discretion and is obligated to vacate the
judgment." Vercosa v. Fields, 174 So.3d 550,
552 (Fla. 4th DCA 2015); cf. Sterling Factors Corp. v.
U.S. Bank Nat'l Ass'n, 968 So.2d 658, 665 (Fla.
2d DCA 2007) ("A void judgment is so defective that it
is deemed never to have had legal force and effect.").
For that reason, the question of whether or not a judgment is
void is reviewed de novo. Vercosa, 174 So.3d at 552.
that standard of review, we conclude that the trial
court's damages judgment is void because there is no
evidence in this record that Ms. Rodriguez and Mr. Hernandez
were provided with notice of the damages trial. Even when a
default on liability has been entered against a litigant, the
defaulting party remains entitled to a trial on damages
where, as here, the damages are unliquidated. See Szucs
v. Qualico Dev., Inc., 893 So.2d 708, 712 (Fla. 2d DCA
2005). As such, a defaulted party has a due process right to
notice and an opportunity to be heard on the subject of
unliquidated damages. Asian Imps., Inc. v. Pepe, 633
So.2d 551, 552 (Fla. 1st DCA 1994); see also
Vercosa, 174 So.3d at 552; Rodriguez-Faro v. M.
Escarda Contractor, Inc., 69 So.3d 1097, 1098 (Fla. 3d
ensure that a defaulted party's entitlement to notice is
honored, rule 1.440(c) requires that "[i]n actions in
which the damages are not liquidated, the order setting an
action for trial shall be served on parties who are in
default in accordance with rule 1.080." See
also Fla. R. Civ. P. 1.080; Fla. R. Jud. Admin. 2.516.
"[This] rule is designed to safeguard the parties'
right to procedural due process." Brown v.
Reynolds, 872 So.2d 290, 297 (Fla. 2d DCA 2004).
judgment that has been entered in violation of due process is
void. State Farm Mut. Auto Ins. Co. v. Statsick, 42
Fla.L.Weekly D1585, D1586 (Fla. 2d DCA July 14, 2017). It
follows, therefore, that when a trial court enters a judgment
awarding unliquidated damages against a defaulted party after
a trial of which the defaulted party was not provided notice,
the resulting judgment is void. See Vercosa, 174
So.3d at 552-53; Rodriguez v. ALS Commercial Funding,
LLC, 138 So.3d 491, 491-92 (Fla. 3d DCA 2014);
Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA
record contains ample evidence of Ms. Rodriguez's and Mr.
Hernandez's failure to respond to prior pleadings and
orders, and we thus doubt that they would have appeared at a
damages trial even if they had received notice of it. But the
law is settled that they were entitled to that notice. And
this record contains no evidence that it was given to them.
On the contrary, the evidence points in the opposite
direction. As such, the final judgment is void to the extent
it awarded damages in violation of Ms. Rodriguez's and
Mr. Hernandez's due process rights, and the trial court
should have granted their motion to that extent. See Hill