Third District Court of Appeal
State of Florida
Opinion filed May 1, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1369
Lower Tribunal No. 11-27179
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Lincoln Mews Condominium Association, Inc.,
Appellant,
vs.
Stephanie Harris,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A.
Ruiz, Judge.
Gasdick, Stanton & Early, P.A., and August J. Stanton, III and Diva N.
Totten (Orlando), for appellant.
Crabtree & Auslander and John G. Crabtree, Charles M. Auslander, Brian C.
Tackenberg and Emily Cabrera, for appellee.
Before SALTER and MILLER, JJ., and LEBAN, Senior Judge.
SALTER, J.
Lincoln Mews Condominium Association, Inc. (the “Association”), appeals
an order denying its motion to vacate a default final judgment against the
Association for $500,000.00 entered in favor of a unit owner (“Ms. Harris”) in
September 2013. We reverse the order and remand the case to the trial court to
vacate the void final judgment.1
The 2011 Lawsuit and Its Pro Se Phase
Ms. Harris commenced her circuit court lawsuit in 2011. Initially she was
represented by counsel. The complaint is difficult to decipher, purporting to have
been brought by Ms. Harris “individually and on behalf of [the Association]”
against the President of the Association (“Mr. Garcia”) and the Association itself.
The initial complaint contended that a restrictive covenant gave unit owners at the
Lincoln Mews Condominium a right of first refusal which was being violated by
Mr. Garcia. Paragraph 13 of the complaint alleged:
[Ms. Harris] has, and will put forth evidence in this motion, that Mr.
Garcia has the intent to defraud the other unit owners by short selling
his unit, by selling to a straw buyer and then reselling the property at
a price above market value and thereby escheating the bank of some
$30,000.00 and the Association of the certificate of use and other
monies owed.
1 The final judgment in question was erroneously entered by a predecessor trial
judge based on representations by Ms. Harris’s then-counsel at a motion calendar
hearing at which neither the Association nor any attorney representing the
Association was present—for the appropriate reasons described in this opinion.
2
Ms. Harris sought an order “[c]ommanding” the Association to enforce the
covenant, declaring that Mr. Garcia’s alleged sale could not proceed without
complying with the “first right of refusal” [sic], and “[c]ommanding” Mr. Garcia to
comply with an unspecified “certificate of use violation which has running a lien
since August 4th, 2011.” A second count sought a declaratory judgment regarding
the “interpretation and application of the covenants written in the Association’s
bylaws.”
Mr. Garcia, through counsel, filed a motion to dismiss on numerous
grounds, including (1) a contention that “Harris can not bring an action on behalf
of [the Association] without approval from a majority of the Board of Directors”;
and (2) Ms. Harris’s failure to attach the Declaration of Condominium or the
Association bylaws to her complaint. (Original emphasis). Two weeks later, Ms.
Harris moved for a default against Mr. Garcia and the Association (despite the fact,
confirmed by a docket entry, that Mr. Garcia had responded to the complaint).
Shortly after this, Ms. Harris and her attorney parted ways,2 and Ms. Harris
began to file and serve pro se pleadings. Two of these are particularly pertinent
here. In a “FIRST AMMENDED COMPLAINT” [sic] filed December 22, 2011,
but indicating that it was served on an unspecified day in November 2011, Ms.
Harris dropped the Association as a defendant in the caption and body of the three-
2 Ms. Harris filed a stipulation for substitution as a pro se, and her attorney
obtained an order discharging him from further responsibility in the lawsuit.
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count amended complaint. The pro se first amended complaint is a mashup of
alleged claims for “theft of service upon a senior citizen,” “self serving use of lien
as extortion,” and Mr. Garcia’s purported “refusal to quiet title due to lien.” The
pleading states no legally cognizable claim and never mentions a claim for relief as
against the Association.
Only five days later, Ms. Harris filed a second pro se “1st-First Amended
Complaint” against the Association. Styled a “motion” in the body of the
pleading, Ms. Harris alleged that she “represents the Majority of the Board of
Directors, and currently owns 73% of the physical property held by [the
Association].” In this pleading, Ms. Harris asked for the denial of Mr. Garcia’s
motion to dismiss and for a default order against the Association “for damages in
the amount of $2.4 Million Dollars.” That damages amount was not itemized or
explained in any detail. Although the December 22, 2011, first amended
complaint showed that the Association had been dropped as a defendant, Ms.
Harris did not have her second pro se first amended complaint (actually her second
pro se complaint) served on the Association.
In February of 2012, Ms. Harris retained substitute counsel, who filed a
“Third Amended Complaint” against Mr. Garcia, four other (newly added)
defendants, and the Association; this amendment also was not served on the
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Association, despite the fact that the Association had been dropped as a defendant
two months earlier.
The Third Amended Complaint, even more colorful than the prior versions,
claimed “2.4 million dollars in property damages committed by [the Association]”
and “1 million dollars for each of the 5 SLAPP suits and reputation of the
persecution of [Ms. Harris], in mental anguish, lost career loss of sale of property
and interference of audit, perjured complaints to multiple government agency”
[sic]. Next, Ms. Harris’s attorney moved for judicial default against the
Association, with a certificate of service by mail to the Association building (1525
Lenox Avenue, Miami Beach) rather than to any unit number or by identifying any
authorized individual. Ms. Harris also voluntarily dismissed all of the individual
defendants, listing the Association as the only remaining defendant (and ignoring
Ms. Harris’s pro se amended complaint that had dropped the Association as a
defendant in that pleading). The then-presiding judge granted the motion, which
had simply omitted the procedural history. No one from the Association appeared
to oppose the motion.
In September 2013, Ms. Harris moved for a final judgment against the
Association based on the judicial default. Through counsel, she represented that
“[a]ffidavits of amounts due and owing, costs and attorney’s fees will be filed
under a separate filing,” in order to liquidate Ms. Harris’s claim. Any such
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documents are not in the record and are not reflected on the docket. There is no
indication that any such affidavits were provided to the Association.
Days later, the then-presiding trial judge granted the motion and entered a
“final judgment after default,” in favor of Ms. Harris and against the Association,
for $500,000.00. Neither the pleadings nor any itemized summary establishes a
basis for that damages amount.
The case went into hibernation for four years, whereupon Ms. Harris
brought in new counsel for collection, moved for the appointment of a receiver
over the entire condominium, and moved for a writ of garnishment. At this point,
the Association retained counsel and moved for relief from judgment under Florida
Rule of Civil Procedure 1.540(b), reciting the tangled procedural history and
additional facts:
“Lincoln Mews Condominium Association, Inc.” was a fictitious
name and not a corporation. The entity to be served at the outset of
the case was “Lincoln Mews Condominium, Inc.”
The summons for the condominium defendant was served on the
daughter of Ms. Harris, who was not an officer or agent of the
condominium.
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The condominium address used for service of process was a unit
owned by an individual who was not the condominium’s registered
agent or otherwise authorized to accept the original complaint.
The motion to vacate further alleged that the judgment was void because the
Association was dropped from the case in the pro se first amended complaint and
was rendered without a trial on unliquidated damages (and without notice of the
alleged damages to the allegedly-defaulted defendant). Following a hearing before
the successor trial judge, the motion to vacate was denied. This appeal followed.
Analysis
The Association’s motion to vacate the default final judgment is reviewed
under the de novo standard of review in this case, as it was only timely if the
underlying judgment is void. Nationstar Mortgage, LLC v. Diaz, 227 So. 3d 726,
729 (Fla. 3d DCA 2017). The unusual record in this case indicates that the final
judgment entered by the predecessor judge was indeed void.
Loss of Personal Jurisdiction by Dropping Party
Ms. Harris’s pro se first amended complaint named only Mr. Garcia as a
defendant, thereby dropping the Association as a defendant. As a result of that
pleading, the trial court lost in personam jurisdiction over the Association. See Sas
v. Postman, 687 So. 2d 54 (Fla. 3d DCA 1997). This was a legal problem created
by a pro se plaintiff. That action by Ms. Harris required the second and later
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version of a complaint against the Association to be served with new process. Ms.
Harris did not do so.
These authorities remove this case from the precedent advanced by counsel
for Ms. Harris at the hearing on the motion to vacate, Kathleen G. Kozinski, P.A.
v. Phillips, 126 So. 3d 1264 (Fla. 4th DCA 2013). In that case a final judgment
was voidable, not void, because there were indications that the defendant was
aware of the action. Here, the pleadings after the first amended complaint dropped
the Association did not restore jurisdiction, required no action on the part of the
Association, and were unaffected by notice or constructive notice to the
Association. A summons properly served was required to establish jurisdiction
following the deletion of the Association from the caption, body, and prayer for
relief in Ms. Harris’s pro se first amended complaint, as if the case against the
Association was commencing anew. See Seymour v. Panchita Inv., Inc., 28 So. 3d
194 (Fla. 3d DCA 2010) (failure to perfect service renders a subsequent judgment
void, not voidable).
Failure to Liquidate Damages
The classification of damages as “liquidated” or “unliquidated” is also
reviewed under the de novo standard of review. See Miami Beverly LLC v. City
of Miami, 225 So. 3d 989, 992 (Fla. 3d DCA 2017). “The failure to provide a
defendant with notice and an opportunity to be heard where the damages are
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unliquidated is a due process violation and constitutes fundamental error requiring
that such damages be set aside.” Id. at 993.
Ms. Harris provided no information showing a liquidated damages amount
or an amount claimed totaling $500,000.00. No notice of any basis for that amount
was filed or provided to the Association, despite Ms. Harris’s representation in her
motion for entry of a final default judgment that “[a]ffidavits of amounts due and
owing, costs and attorney’s fees will be filed under a separate filing.” The
judgment rendered on the fanciful3 and unliquidated claims in Ms. Harris’s various
complaints, with no prior notice of the amount sought provided to the allegedly-
defaulting defendant or otherwise made a part of the record, is void. See Ciprian-
Escapa v. City of Orlando, 172 So. 3d 485, 488-91 (Fla. 5th DCA 2015)
(discussing the requirements of Florida Rule of Civil Procedure 1.440(c) and
related precedent).
Conclusion
Following a thorough review of the strange and protracted record before us,
we conclude that the final judgment entered in 2013 by the predecessor judge was
3 Ms. Harris’s Third Amended Complaint, her final claims for damages, sheds no
light on the quantum of the alleged property damages, misapplications of funds,
receivership expenses, “SLAPP suit” damages, and “gross diminishment in value.”
Rather, the prayer for relief seeks “an award of compensatory damages in an
amount to be determined at time of trial,” “an award of general damages in an
amount to be proven at time of trial,” and “an award of punitive damages in an
amount to be determined at time of trial.”
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(1) void in its entirety, as to both liability and damages, because Ms. Harris
dropped the Association as a party and never re-served the Association with
original process, and (2) also, and independently, void as to the award of
damages—a figure having no discernible basis in the operative complaint or any
other part of the circuit court record. The order below is reversed and the case
remanded for the entry of an order vacating the final judgment after default.
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