HERNAN MILLAN v. YSAURA MARQUEZ

• Court: District Court of Appeal of Florida
• Decided: January 26, 2022
• Docket: 20-1895
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 26, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1895 Lower Tribunal No. 19-5468 ________________

Hernan Millan, Appellant,

vs.

Ysaura Marquez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Tomas Kucera, P.A., and Tomas Kucera, for appellant.

Law Offices of Aaron Resnick, P.A., and Aaron R. Resnick, for appellee.

Before LOGUE, HENDON and GORDO, JJ.

GORDO, J. Hernan Millan appeals a default final judgment entered in favor of

Ysaura Marquez. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We

affirm without further discussion on all issues save one. “It is well settled

that a defaulting party ‘has a due process entitlement to notice and

opportunity to be heard as to the presentation and evaluation of evidence

necessary to a judicial determination of the amount of unliquidated

damages.’” Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662,

666 (Fla. 3d DCA 2007) (quoting Bowman v. Kingsland Dev., Inc., 432 So.

2d 660, 663 (Fla. 5th DCA 1983)). Here, the trial court erred by awarding

Marquez unliquidated damages without affording Millan adequate notice and

an opportunity to be heard. See DYC Fishing, Ltd. v. Martinez, 994 So. 2d

461, 463 (Fla. 3d DCA 2008) (“When unliquidated damages must be

determined as a result of a default, the defaulting party ‘is entitled to notice

of an order setting the matter for trial, and must be afforded an opportunity

to defend.’” (quoting Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090,

1095 (Fla. 4th DCA 2006))); Fiera.com, Inc. v. DigiCast New Media Grp.,

Inc., 837 So. 2d 451, 452 (Fla. 3d DCA 2002) (reversing a default final

judgment where extrinsic evidence was necessary to determine the amount

of damages, and no damages hearing was held); Whitehead v. Shutter

Hangers, Inc., 322 So. 3d 221, 221–22 (Fla. 3d DCA 2021). We therefore

2 reverse the final default judgment to the extent it awarded unliquidated

damages and remand for a duly noticed trial or evidentiary hearing on the

same.

Affirmed in part; reversed in part; remanded with instructions.