Cluett v. Krystyniak

532 So. 2d 739, 1988 WL 99745

Opinion

532 So.2d 739 (1988)

Ernest H. CLUETT, II, and Mary L. Cluett, Husband and Wife, Appellants,
v.
Deanna KRYSTYNIAK, Appellee.

No. 87-2902.

District Court of Appeal of Florida, Second District.

September 30, 1988. Rehearing Denied October 26, 1988.

Terry L. Belle, of Law Offices of Max P. Engel, Fort Myers, for appellants.

Robert C. Hill, Fort Myers, for appellee.

HALL, Judge.

The appellants raise two points on appeal. The appellants contend that the trial court erred in entering a default against the appellants as to the issue of liability because of their failure to appear at trial of the case. We agree and, therefore, do not find it necessary to reach the second issue raised by the appellants.

The case was originally set for trial on August 4, 1987, but was reset for August 18, 1987. The appellants failed to appear for trial on that date. The trial court found that the appellants had received due notice and that their failure to appear was intentional and, therefore, entered a default against them as to the issue of liability. A jury was then empaneled to determine the amount of damages. Evidence was presented by the appellee, and the jury returned a verdict in the amount requested by the appellee.

Although the trial court was not required to continue the cause because of the appellants' failure to appear, Ortiz v. Nicolaides, 196 So.2d 186 (Fla. 3d DCA 1967), it erred in entering a default judgment against the appellants where the pleadings set forth disputed issues as to liability and there was no evidence before the court prior to its determination of liability. Belcher v. Ferrara, 511 So.2d 1089 (Fla. 3d DCA 1987).

Accordingly, we reverse the judgment and remand for trial of the cause.

SCHEB, Acting C.J., and SCHOONOVER, J., concur.