Christopher Torres a/k/a Christopher Junior Torres and Doreen Rose Torres a/k/a Doreen Cypress-Torres a/k/a Doreen Rose Cypress v. One Stop Maintenance & Management, Inc., and Michael's Decoration, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

CHRISTOPHER TORRES a/k/a CHRISTOPHER JUNIOR TORRES and
DOREEN ROSE TORRES a/k/a DOREEN CYPRESS-TORRES a/k/a
DOREEN ROSE CYPRES,
Appellants,

v.

ONE STOP MAINTENANCE & MANAGEMENT, INC., and MICHAEL’S
DECORATION, INC.,
Appellees.

No. 4D14-277

[October 21, 2015]

Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No.
CACE11020913(08).

Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellants.

Jose R. Riguera of Berman, Kean & Riguera, P.A., Fort Lauderdale, for
appellees.

MAY, J.

The defendants appeal an order denying their motion to vacate a final
judgment. They argue the judgment is void because they were denied due
process when they did not receive timely notice of the trial on unliquidated
damages. We agree and reverse.

The underlying dispute is irrelevant to our discussion. Suffice it to say,
the plaintiffs sued the defendants for breach of oral contracts for services,
quantum meruit, and unjust enrichment. In their amended complaint,
they sought unliquidated damages in the amount of $456,080.67. The
defendants answered the complaint, and raised affirmative defenses; they
did not demand a jury trial.

In October 2012, the plaintiffs moved for summary judgment, and
served a notice of hearing for January 28, 2013, on defense counsel. In
November 2012, defense counsel moved to withdraw and served the
motion on the defendants at their home address. In December 2012, the
trial court granted defense counsel’s motion to withdraw, and instructed
the defendants to retain new counsel within ten days of the order or
proceed pro se. In the order, the court cautioned the defendants that the
summary judgment hearing would not be continued. The court served the
order on the defendants and their withdrawn counsel.

Just before the summary judgment hearing, the defendants filed two
affidavits of indebtedness. The summary judgment hearing proceeded,
and the trial court granted summary judgment on liability noting that
damages were to be set.

The plaintiffs subsequently moved for a determination of damages. The
certificate of service in the motion is dated February 25, 2013, and states
the plaintiffs served the defendants at their home address. The plaintiffs
also moved for entry of judgment based on the trial court’s summary
judgment. That motion states that it was served on the defendants at their
home address on the same date. Interestingly, the motion also states,
“[T]he Court having heard argument on March 4, 2013 and considered all
evidence presented.”

The record contains a notice of hearing for the motion for determination
of damages and motion for entry of judgment, which set the hearing for
March 4, 2013. The certificate of service represents that plaintiffs’ counsel
served the notice on the defendants at their home address on February 25,
2013. The docket stamp, however, shows the notice of hearing was not
docketed until March 6, 2013—two days after the hearing occurred. The
defendants did not attend the March 4, 2013 hearing and claimed they did
not receive the notice of hearing until March 5, 2013.

On March 13, 2013, the trial court entered a final judgment on
damages. The order stated that after having been presented with evidence
from the plaintiffs, the court awards damages in the amount of $63,324.98
to one plaintiff and $398,805.41 to the other. The court served the final
judgment on the defendants at their home address. The defendants admit
they received the final judgment the day after it was rendered.

On July 26, 2013, just under five months after entry of the final
judgment, the defendants moved through new counsel to vacate the final
judgment. They argued they did not receive the notice of hearing for the
damages trial until March 5, 2013—the day after it occurred—and that is
why they did not attend. Because they did not receive notice of the
damages trial, they were denied due process.

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 The plaintiffs opposed the motion and argued that because the
defendants have received twenty-five court documents at their home
address since entry of the final judgment, they cannot argue they did not
receive notice of the damages trial, which was sent to the same address.
They also argued the defendants’ motion to vacate was legally insufficient
and untimely.

At the December 17, 2013 evidentiary hearing on their motion to
vacate, the defendants called an employee from the Broward County Clerk
of Court, who testified that when the clerk’s office receives a document by
mail, it is time stamped to show it has been received. The notice of hearing
for the damages trial was dated March 6, 2013, meaning it was received
by the clerk on that date.

One of the defendants testified that she received an envelope which
contained the notice of hearing on March 5, 2013, the day after the March
4, 2013 damages trial. She was unable to take any action because she
had no money for a lawyer. When she could afford it, she hired a lawyer.
During her testimony, the court and counsel realized the envelope she
received with the notice of hearing was not postmarked.

When asked why she did not appear pro se at the summary judgment
hearing, she responded she did not know she could come by herself. She
emphasized that neither she nor her husband appeared for any court
related issues when they did not have a lawyer because they did not know
they could represent themselves. She could not remember when she
received the motion for determination of damages and motion for entry of
judgment.

The former defense lawyer testified that he withdrew because the
defendants could not pay him. He confirmed he spoke with one of the
defendants about the pending summary judgment hearing after he
withdrew and informed her she had a right to be at the hearing.

Plaintiffs’ counsel testified that he confirmed the defendants received
notice of the summary judgment hearing. After final judgment was
entered, the defendants failed to appear at any hearings even though they
received notice of them. As to the notice of hearing for the damages trial,
counsel stated he assumed one of his assistants mailed it to the
defendants; he did not know why the envelope was not postmarked. He
also did not know when the notice of hearing was actually put in the mail.

After presentation of the evidence, defense counsel argued: (1) Florida
Rule of Civil Procedure 1.440(c) requires trial be set with no less than thirty

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days’ notice from service of the notice of trial, and the notice of hearing for
the damages trial was sent less than five days before trial; and (2) the
defendants’ due process rights were violated because they did not receive
notice of the damages trial until after the trial had occurred. He requested
the court to set aside the judgment as void. The plaintiffs’ counsel
responded that the defendants failed to file their Rule 1.540 motion within
a reasonable time, failed to file a sworn motion to set aside the judgment,
and failed to allege excusable neglect.

The trial court then acknowledged that the notice of hearing for the
damages trial was insufficient as far as timing, and that it was not clear
whether the defendants received notice before the trial occurred. The court
indicated it would base its decision on the credibility of the witnesses. The
court then asked the parties the following:

[A]ssuming she even did get [the notice], it could still be short
notice; does that render my judgment void or is it simply
voidable and if it’s voidable then I guess we go to 1.540. Since
she was not afforded the opportunity to be present, what do
we do about that?

Plaintiffs’ counsel argued that even if the defendants received the notice
of hearing the day after the damages trial, they could have moved for
rehearing or done something to set aside the judgment. Thus, he argued
the final judgment was merely voidable.

The trial court denied the motion to vacate stating, “[T]he Final
Judgment was/is voidable not void. The [defendants] after timely receiving
a copy of the Final judgment took no action for a period of five (5) months
to set aside Final Judgment, seeking rehearing or file an Appeal despite
having actual knowledge.” From that order, the defendants now appeal.

The defendants continue to argue the trial court erred in denying their
motion to vacate the final judgment because the plaintiffs’ failure to
provide notice of the damages trial violated their due process rights
rendering the final judgment void. They argue that because a final
judgment can be attacked as void at any time, their motion to vacate was
timely.

The plaintiffs respond the trial court correctly denied the motion to
vacate because the final judgment was only voidable since the defendants
received timely notice of the entry of the final judgment, failed to move for
rehearing or for a new trial, or file a notice of appeal. They assert that
waiting five months to vacate the final judgment is unreasonable. While

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they concede they did not provide thirty days’ notice of the damages trial
as required by Rule 1.440(c), that issue should have been raised by a
timely appeal, not a motion to vacate final judgment five months after entry
of the judgment.

The defendants reply that none of the cases relied upon by the plaintiffs
address due process violations; a final judgment entered without notice
and an opportunity to be heard is void.

While we ordinarily review an order on a motion to vacate final
judgment for an abuse of discretion, where the judgment is void, we have
de novo review. Vercosa v. Fields, 40 Fla. L. Weekly D1979, at D1979 (Fla.
4th DCA Aug. 26, 2015).

The sole question to be decided is whether the final judgment was void.
Our decision in Vercosa v. Fields, 40 Fla. L. Weekly D1979 (Fla. 4th DCA
Aug. 26, 2015), answers that question. “[I]t is well settled that a defaulting
party is entitled to notice and an opportunity to be heard when the
damages are unliquidated. A judgment entered without such notice and
opportunity to be heard is void.” Id. at D1980 (internal citation omitted).
That is precisely what happened here.

Even if notice had been sent on February 25, 2013, as argued by the
plaintiffs, the defendants would have received only a few days’ notice for a
damages trial. Florida courts have held that such short notice is
insufficient to satisfy due process. See, e.g., J.B. v. Fla. Dep’t of Children
& Family Servs., 768 So. 2d 1060, 1066–67 (Fla. 2000) (twenty-four hours’
notice for a termination of parental rights proceeding is unreasonable);
Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 5th DCA 2005) (two days’ notice
insufficient for civil contempt hearing); P & L Fla. Inv., Inc. v. Ferro, 545
So. 2d 448, 448 (Fla. 3d DCA 1989) (six days’ notice in advance of a
hearing is unreasonable); Montgomery v. Cribb, 484 So. 2d 73, 75 (Fla. 2d
DCA 1986) (two days’ notice of a hearing on a motion to strike is
unreasonable).

Due process is precisely why Florida Rule of Civil Procedure 1.440(c)
“mandates [that] the parties to litigation are entitled to an order setting a
case for trial and the order setting the case for trial shall give at least thirty
days notice from the entry of that order to the trial date itself.” Mourning
v. Ballast Nedam Constr., Inc., 964 So. 2d 889, 892 (Fla. 4th DCA 2007)
(citation omitted); see Fla. R. Civ. P. 1.440(c). Florida law guards due
process rights for unliquidated damages claims. See Mourning, 964 So.
2d at 892; Viets v. Am. Recruiters Enters., 922 So. 2d 1090, 1095 (Fla. 4th
DCA 2006); Pierce v. Anglin, 721 So. 2d 781, 783 (Fla. 1st DCA 1998); see

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also Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 662 (Fla.
3d DCA 2007).

Here, the final judgment awarded $456,080.67 in unliquidated
damages, a significant amount. The defendants were entitled to timely
notice of the damages trial and an opportunity to be heard. The trial court
erred in denying the motion to vacate the final judgment. We therefore
reverse and remand the case for a new trial on damages.

Reversed and Remanded.

CIKLIN, C.J., and FORST, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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