Greiner Engineering Sciences, Inc. v. Commercial Center Development Corp.

District Court of Appeal of Florida

Greiner Engineering Sciences, Inc. v. Commercial Center Development Corp.

508 So. 2d 525, 12 Fla. L. Weekly 1454, 1987 Fla. App. LEXIS 8779

CourtDistrict Court of Appeal of Florida

DecidedJune 11, 1987

DocketNo. 86-1665

StatusPublished

Cited by1 cases

This text of 508 So. 2d 525 (Greiner Engineering Sciences, Inc. v. Commercial Center Development Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Greiner Engineering Sciences, Inc. v. Commercial Center Development Corp., 508 So. 2d 525, 12 Fla. L. Weekly 1454, 1987 Fla. App. LEXIS 8779 (Fla. Ct. App. 1987).

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Opinion

COBB, Judge.

Greiner Engineering Services, Inc., appeals an order granting a new trial to ap-pellees/defendants below, Commercial Center Development Corporation and The Market Place at Daytona, Inc., based on the trial court’s determination that the defendants were not provided with due process notice and an opportunity to be heard. The lack of opportunity came about when the defendants failed to appear at the trial, which resulted in a judgment for the plaintiff for $47,360.00, plus interest, costs and $6,187.50 in attorney’s fees pursuant to section 57.105, Florida Statutes (1985).

The trial court ruled incorrectly in ordering a new trial on the entire cause, since the defendants admitted all the points at issue in the trial by failing to respond to the plaintiff’s request for admissions. See Fla.R.Civ.P. 1.370(a). Those matters admitted are conclusively established for the [526]*526purposes of this action. Fla.R.Civ.P. 1.370(b).

The trial court’s award of attorney’s fees, however, was not pled prior to trial and was not included in the request for admissions.¹ The defendants had no notice of this unliquidated claim, and, thus, were denied their due process right to be heard. See Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983). Accordingly, the trial court’s order granting a new trial is reversed, with the exception of the grant of a new trial on the issue of attorney’s fees.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ORFINGER and COWART, JJ., concur.

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COBB, Judge.

Greiner Engineering Services, Inc., appeals an order granting a new trial to ap-pellees/defendants below, Commercial Center Development Corporation and The Market Place at Daytona, Inc., based on the trial court’s determination that the defendants were not provided with due process notice and an opportunity to be heard. The lack of opportunity came about when the defendants failed to appear at the trial, which resulted in a judgment for the plaintiff for $47,360.00, plus interest, costs and $6,187.50 in attorney’s fees pursuant to section 57.105, Florida Statutes (1985).

The trial court ruled incorrectly in ordering a new trial on the entire cause, since the defendants admitted all the points at issue in the trial by failing to respond to the plaintiff’s request for admissions. See Fla.R.Civ.P. 1.370(a). Those matters admitted are conclusively established for the [526]*526purposes of this action. Fla.R.Civ.P. 1.370(b).

The trial court’s award of attorney’s fees, however, was not pled prior to trial and was not included in the request for admissions.¹ The defendants had no notice of this unliquidated claim, and, thus, were denied their due process right to be heard. See Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983). Accordingly, the trial court’s order granting a new trial is reversed, with the exception of the grant of a new trial on the issue of attorney’s fees.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ORFINGER and COWART, JJ., concur.

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508 So. 2d 525, 12 Fla. L. Weekly 1454, 1987 Fla. App. LEXIS 8779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greiner-engineering-sciences-inc-v-commercial-center-development-corp-fladistctapp-1987.

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